THE REVIEW OF AMERICAN COLONIAL LEGISLATION
BY THE KING IN COUNCIL
STUDIES IN HISTORY, ECONOMICS AND PUBLIC LAW
EDITED BY THE FACULTY OF POLITICAL SCIENCE OF
COLUMBIA UNIVERSITY
Volume LXIV] [Number 2
Whole Number 165
THE REVIEW OF AMERICAN
COLONIAL LEGISLATION BY THE
KING IN COUNCIL
^S^'^^U'
ELMER BEECHER RUSSELL, Ph.D.
2^en) Hork
COLUMBIA UNIVERSITY ^fi^^\?
LONGMANS, GREEN & CO., AGENTS ^
London : P. S. King & Son, Ltd.
1915
Ik/'
*^4.
Copyright, 1915
BY
ELMER BEECHER RUSSELL
>
PREFACE
The power exercised by the English Privy Council, of
annulling the enactments of the royal colonies, afforded the
home government an important instrument of administra-
tive control. It constituted a necessary check upon the only
branch of the colonial governments which was responsive
to popular sentiment, and gave the English executive a final
word in regard to the minutest details of local administra-
tion in the dominions. Its importance both to the mother
country and to the colonies, together with the fact that no
detailed study of its operation has heretofore appeared,
constitute the justification for this work.
The author realizes keenly the limitations of this mono-
graph. It is primarily a study of the action taken upon
colonial legislation by the English government; and only
incidentally does it consider the purpose and contents of the
enactments which met with favor at the Privy Council, or
which provoked the royal veto. In its preparation the
writer has confined himself very largely to the use of mate-
rials which present the English point of view in regard to
colonial administration. A careful and systematic examina-
tion of the colonial laws, together with a study of the legis-
lative journals and other sources which reflect the aims of
the assemblies, and reveal some of the forces at work
therein, would shed additional light upon the whole subject,
and might modify to a considerable degree the conclusions
reached as to the effectiveness of the Council's work of
review. This study, as its title indicates, is also confined
largely to the continental colonies which afterward became
part of the American union. A well-rounded treatment of
423] 5
6 PREFACE [424
the government's attitude toward all the colonial assemblies
and its action upon their legislation would necessitate an
•examination of extensive manuscript material relating to
the island colonies which the author lacked the time to un-
dertake. A study thus broadened in scope would probably
afford little additional light upon either the procedure or
the policy of the government in legislative review. But it
IS essential to any just and definitive conclusion as to the re-
sults and effectiveness with which that policy was pursued.
This work is based primarily upon manuscript material
in the Public Record Office, London. Some eighty-odd
volumes of the Board of Trade Journal give a fairly de-
tailed account of the Board's participation in colonial ad-
ministration prior to 1776. This has been supplemented by
the Original Papers and the Entry Books which are listed
at the Record Office and referred to in this volume under
the call number "CO/5". The former include papers ad-
dressed to the Board by governors and other colonial offi-
cials, law reports and copies of orders in council. The
latter comprise letters from the Board to the governors,
commissions and instructions, Board " Representations "
and other papers which were copied for convenient refer-
ence by the clerks of the Board into large folios. Exten-
sive use has also been made of the printed material in the
Acts of the Privy Council, Colonial Series, and the volumes
of the Calendar of State Papers, Colonial Series, which re-
late to America and the West Indies.
The kindness and courtesy of the officials and attendants
at the Record Office is gratefully acknowledged. This work
was undertaken at the suggestion of Professor Herbert L.
Osgood, of Columbia University, and has been carried to
completion under his guidance and helpful criticism. To
him the author's most sincere thanks are due.
Elmer B. Russell.
New York City, February 19, 191 5.
1
TABLE OF CONTENTS
CHAPTER I
Introductory — The Review of Colonial Legislation Prior to 1696
PAGB
Introductory statement .... 15-16
Absence of legislative review prior to 1660 16
Charter provisions regarding colonial enactments 16-17
A precedent for review in the proprietary governments 18
The gradual realization of the necessity for review 18
Why assumed by the Privy Council 19
Appointment of the committee of the Council, July 4, 1660 19
Appomtment of subordinate councils of trade and plantations 19-21
Composition and activity, 1660-1674 19
Activity of the committee in 1665 ai
Review by the committee of the Council after 1675 . • • • • 21-38
Importance and composition 21
Review largely confined to acts from the Island Colonies 22
Action upon laws from Barbadoes 22-23
Laws to be of indefinite duration 23
Questions concerning the royal power in legislative review ... 23
Action upon laws of Jamaica 23-29
Attempt to deprive the assembly of initiative 24
A body of laws prepared by the attorney general 24
The assembly refuses to accept laws drafted in England 25
A compromise effected 27
A permanent revenue act secured 28
Action upon laws of Virginia 29-3 1
Disallowance of three laws 29
Revision of Virginia laws in England abandoned 30
The assembly accepts three laws prepared in England 31
The permanent revenue act disallowed in part 3 1
Action upon laws of New Hampshire 3 1
Action upon laws of New York 32
A " charter of liberties " annulled • • 33
Action upon laws of Maryland 33
425] 7
8 CONTENTS [426
PAGB
Action upon laws of Massachusetts , 33-36
Provisions of the new charter regarding legislative review .... 34
Review of laws passed under the charter of 1692 35
Laws of Maryland and the Carolinas exempt from review 36
Action upon laws of Pennsylvania 37-3^
Provisions of the charter regarding review 37
Governor Fletcher abrogates the early laws 37
Review of laws passed in 1693 • 38
Work of the attorney and solicitor generals in legislative review 38
Other officials consulted 40
The government's occasional disregard for its own concessions 40-43
Repeal by proclamation of the governor, in Virginia 41
Laws, the operation of which was " suspended " 42
Laws remaining in force pending repeal or amendment 43
Tolerance of the assemblies after 1660 43
CHAPTER II
The Procedure of the English Government in Legislative Review
The work of the Board of Trade in legislative review 44-81
Importance of the Board of Trade 44
Formation of the Board of Trade 45
Composition of the Board of Trade 46
Important periods in the history of the Board of Trade 46-48
The Board prior to 17 14 46
The Board under Whig domination 47
A revival of prestige in 1752 47
Loss of power in 1766 47
Powers delegated to the Board 48
Consideration of Massachusetts laws in 1696 49
Procedure observed at the Board in legislative review 49-58
Receipt of laws and reference to the law office 49
Consideration of laws at the Board 50
Petitions regarding legislation 50
Hearings upon petitions 51
Board reports and representations 52
Changes in the procedure of review after 1718 53
Receipt of orders in council 54
The practice of allowing acts to " lie by probationary " 54-5^
A means of securing amendment or repeal from the assembly. 55
A delay pending the receipt of information 55
A precautionary measure 5^
The proportion of acts left probationary 57
427] CONTENTS '- g
PACK
Reports upon legislation rendered to Parliament 58
Sources of counsel and information available to the Board 59-Si
The law officers of the crown 59-^9^
The attorney and solicitor generals 59
Lack of promptness in rendering reports 60
Proportion of laws referred to the attorney and solicitor ... 62
Questions propounded to the attorney and solicitor 63, 64
Attendance at the Board 65
The King's counsel 65
Attendence at the Board 66
Nature and importance of the law reports 67-69
The lords of the treasury and commissioners of the customs 69-73
The auditor general 72
References by the treasury to the Board 72
Importance of reports from the treasury 73
The Bishop of London 73
The post master general 75
The admiralty . 75
The English merchants 75
Attendance at the Board 76
Influence at the Board 76
The colonial agents 78
Their duties and influence 79
Letters from the colonial governors 80
Conclusion 81
The work of the Committee of the Council in legislative review . . . 82-86
The part taken by the Privy Council prior to 17 10 82
The increasing activity of the committee after 1 7 10 83
Effect upon the prestige and influence of the Board .... 84
Hearings before the committee 85
CHAPTER III
The Procedure of the Government in Legislative Review (Continx;ed)
Anticipatory control of legislation by instructions to governors 87
Instructions regarding enactment and transmission . 87
Instructions forbidding assent to legislation 88
Prohibitions conditioned upon the omission of a suspending clause. 89
Effectiveness of instructions forbidding assent 89
Mandatory instructions . . 90
Laws drafted at the Board for enactment by the assemblies 91
Tentative drafts submitted to the Board by assemblies 92
The codification of colonial laws 93
10 CONTENTS [428
PAGK
The revision of colonial laws 93-96
The Maryland revision of 1699 93
The Virginia revision of 1704 94
The Virginia revision of 1748 95
Refusal of the assembly to revise the Massachusetts laws .... 96
The instruction withdrawn 96
Review of legislation from the proprietory colonies 97-100
Action upon laws of Carolina 97
Influence of the proprietors at the Board .... 98
Action upon proposed laws of Georgia 98
Power and influence of the Pennsylvania proprietors 99
Effect of the charter limitations of Massachusetts and Pennsylvania .... 100
Review of laws from Connecticut and Rhode Island 102
Laws annulled in connection with the appellate jurisdiction of the Privy
Council 104
Procedure in the review of private laws 106
Restrictions upon enactment and transmission 106
Safeguards imposed upon their review 107
CHAPTER IV
The Policy of the Government in Legislative Review — Trade
Shipping and Finance
Introductory statement , 109
The theory of econ omic restrictions imposed no
Attitude toward colonial imposts in
Attitude toward export duties 1 12
Attitude toward duties upon the importation of slaves 112
Attitude toward duties upon the importation of convicts 114
Prohibition of duties favorable to local residents 115
Laws regulating the Indian trade Il6
Laws regulating the cultivation and shipment of tobacco 117
Prohibition of laws encouraging colonial manufactures 118
Frequently emphasized at the Board 119
The establishment of ports and towns 119
-Attitude toward the emission of paper money , 120-125
General restrictions imposed 121
Legal tender provisions 122
The act of Parliament, 1764 123
Attitude of the merchants toward paper money 124
Attitude toward debtor legislation . 1 25-134
The bankruptcy acts of Massachusetts and Virginia 1 25
Acts relieving prisoners for debt 126
429] CONTENTS '- II
PAGR
Discriminations against English creditors 127
Stay laws and exemptions from arrest 128
Laws granting priority to local creditors 129
Laws conferring excessive powers upon inferior conrts 130
Laws unjust to debtors or creditors 131
Prohibition of attachments upon the property of absentees 132
The act of Pariiament, 1731 133
Laws declaring slaves personal property *34
Laws regulating the exchange upon coins 136
CHAPTER V
The Poucy of thk British Government in Legislative Review :
Insistence upon Conformity to the Law of England
Introductory statement ^39
Enactment of English statutes discouraged 139
Attitude toward laws technically defective 141-147
Cause of technical imperfections 14*
Laws vaguely or loosely worded 142
Laws deemed unnecessary or trivial 143
Laws imposing excessive penalties 144
Laws retrospective in their operation 144
Laws dealing with unrelated subjects 145
Laws enacted in an irregular manner 145
Acts upon subjects without the purview of the colonial assemblies . . 146
Attitude toward acts conflicting with a more fundamental law .... 147-150
Laws in conflict with instructions to the governor 147
Laws in conflict with a provincial charter 148
Laws in conflict with an act of Parliament 149
Acts at variance with the common law 149
Attitude toward infringements upon individual liberty 150
Laws permitting conviction without due process 151
Laws conferring excessive powers upon local magistrates .... 151
Attitude toward infringements uj)on rights to private property . . . . 152- 16 1
Provisions deemed confiscatory 152
Laws regarding the conveyance of lands . . • • 153
Restrictions imposed 154
Legislative encroachments upon the domain of the courts .... 155
Laws barring entails 156
Laws regarding the proof of wills 157
Laws regarding the settlement of intestate estates 15S
Laws regarding the property rights of married women 160
12 CONTENTS [430
PAGB
Attitude toward deviations from English judicial procedure 161-168
Rules in regard to the use of affirmations 162
Restrictions upon the use of aflidavits 162
The establishment of equity courts 164
Discouragement of needless litigation 164
Laws conferring excessive jurisdiction upon incompetent courts ... 165
Laws conferring powers upon local magistrates 165
Laws impowering judges to try cases without juries 166
Laws limiting appeals to superior courts 167
Attitude toward laws granting naturalization 168
The act of Parliament, 1740 169
Laws granting aliens titles to lands 1 70
Attitude toward private acts of divorce 171
CHAPTER VI
The Policy of The British Government in Legislative Review :
Attitude toward Encroachments upon the Prerogative
Introductory statement 174
Laws detrimental to the material interests of the crown 174-176
Acts regulating the collection of quit rents 175
Restrictions upon the recovery of forfeitures 175
Laws detrimental to the dignity or privilege of the crown 176-193
Encroachments upon the domain of the executive 176-180
The right of visitation 177
The power to initiate fairs and markets 177
Laws granting the privilege of incorporation 178
Commissions for the custody of lunatics 179
Encroachments upon the power to reprieve and pardon 179
Laws injurious to patent officers 180
Laws imposing limitations or penalties upon customs officers . . . 180
The regulation of fees 182
Infringements upon the power to call and regulate assemblies . . 183-188
Biennial and triennial laws ... 184
Qualifications for members and their electors 185
Laws granting representation to local communities 185
Instructions to Governor Shirley of Massachusetts 186
Disputes regarding representation in New Hampshire and
North Carolina 187
The general instruction of 1767 188
Delegation of the power to establish courts 189
Attempts to limit the crown's discretion in appointing judges . . . 189
Desire that commissions run " during good behavior "... 190
431] CONTENTS 1 3
PACK
Limitations apon appeals to the king in Council 190
Legislative usurpation upon the domain of the courts 191
Attempts to enlarge the legislative control over appropriations .... 192
Comment of the Board upon legislative encroachments in Pa. . 192
CHAPTER VII
The Policy of the British Government in Legislative Review:
Attitude Toward Laws Deemed Inexpedient
Introductory statement 194
Attitude toward laws authorizing lotteries 194
Laws reducing the rate of interest 195
Attitude toward grants of land 195
The Government a patron of religion 196-199
Attitude toward the establishment of the Anglican Church 196
Tolerance of dissenters 196
Acts of Maryland injurious to Catholics 197
A Virginia law against Quakers disallowed, 17 18 198
Protection of the minority in Massachusetts 198
Tolerance discouraged in two instances 199
The government an arbiter in inter-colonial disputes 199
Boundary dispute between New York and New Jersey 199
Dispute between citizens of South Carolina and Georgia .... aoo
Attitude toward discriminatory duties aoo
Conflicting regulations imposed upon Indian traders aul
CHAPTER VIII
The Results of Legislative Review
Introductory statement 303
Obstacles to the effectiveness of review 203
The results obtained by legislative review 204
Results from the economic policy of the crown 204
Conformity to the law of England 205
Defence of the prerogative 205
Colonial evasion of English requirements 206
Failure to transmit laws 206
Delay in the submission of Pennsylvania laws 207
Unrelated subjects within a single enactment 207
Temporary laws 208
Not an effective means of evasion 210
The re-enactment of laws disallowed 210
Failure to observe orders in council 312
14 CONTENTS ^ [432
PAGE
The effectiveness of instructions to governors 213
The necessity of instructions 213
Instructions requiring the insertion of a suspending clause 214
Suspending clauses disregarded after insertion 215
Why governors failed to obey instructions 215
Criticisms of the procedure in review 216
Lack of centralization 216
Delays resulting from the complex machinery of review .... 216.
Attitude of administrative bodies toward colonial affairs 218
Expense involved by the process of review 218
The proportion of laws disallowed 221
Inconvenience or hardships resulting from dissallowance 222
Inconvenience from uncertainty and delay 222
Delay caused by the insertion of suspending clauses 223
Attitude toward laws of domestic import • 224
Needless interference in local affairs 225
Conflict between colonial development and imperial policy 225
The nature of disallowance by the Privy Council .... • 227
Its importance as a precedent 227
CHAPTER I
Introductory; The Review of Colonial Legislation
Prior to 1696
The English government in its royal colonies exercised
what was virtually a double check upon the activities and
enactments of the colonial legislatures. By instructions to
the governor it insured the veto of anticipated legislation
of objectionable character, and more or less effectively
curbed his conduct as a constituent part of the law-making
body. And furthermore it required that all enactments be
transmitted to England, where they were subject to exam-
ination by the Privy Council and its subordinate bodies,
and if deemed objectionable to a summary disallowance.
The exercise of this power imposed upon a government, far
removed and much occupied with larger concerns, a neces-
sity of grappling with numerous problems, which although
of domestic import, were nevertheless of immediate and
far-reaching importance to the colonial inhabitants. More-
over, it often confronted the English authorities with the
delicate and dangerous necessity of finding a basis of con-
ciliation between the political ideas and economic interests
of the Empire, and the apparently diverging ideas and in-
terests of the several colonies which were struggling sep-
arately towards a political self -consciousness. It is, there-
fore, significant that when the Continental Congress came
to cast about for grievances which would justify the im-
pending separation from the mother country, they made the
alleged abuse of this control over the colonial assemblies
433] 15
l6 REVIEW OF COLONIAL LEGISLATION [434
the basis of eight counts in the indictment summoning their
tyrannical sovereign to the bar of a candid world.
It is the purpose of this study to trace from its beginnings
the exercise of the government's power of reviewing colo-
nial legislation ; to examine the administrative bodies of the
English government engaged in the task, their composition,
manner of procedure, and attitude toward colonial prob-
lems; to find, if possible, what the government sought to
accomplish by the confirmation or disallowance of laws; to
form some estimate of its success or failure in achieving
these aims ; to consider whether the restrictions imposed by
this system of legislative review were in any real sense a
hardship and a grievance to the colonists; and, finally, to
inquire whether it may be said to have prepared the way
for the judicial annulment of laws subsequently practised
under the constitutions of the several states and of the
United States.
No regular and systematic review of colonial legislation
was undertaken by the Privy Council or Parliament, or by
their committees, prior to the Restoration of 1660. Nor
-does it appear that any colonial law was confirmed or dis-
allowed during this period. The Virginia charter of 1606
assumed that " Laws, Ordinances and Instructions " should
originate in the crown and pass under the privy seal of
England; while that of 1609 conferred upon a council the
power to make " all Manner of Orders, Directions, Instruc-
tions, Forms and Ceremonies of Government and Magis-
tracy," and imposed no restriction upon the exercise of it.^
Beginning with the third Virginia charter of 16 12, how-
ever, grants conferring the law-making power invariably
stipulated that acts should be not contrary nor repugnant
to the laws and statutes of England. This document im-
* Macdonald, Select Charters, pp. 5, 14.
435] INTRODUCTORY I7
powered the treasurer and the company in the four general
assemblies held each year, " to ordain and make such Laws
and Ordinances, for the good and welfare of the said Plan-
tation, as to them from time to time, shall be thought requi-
site and meet: So always, as the same be not contrary to
the Laws and Statutes of this our Realm of England." ^
A similar proviso appears in the patent of the Council of
New England, issued in 1620, and in the first charter of
Massachusetts, issued in 1628-9.^ The Maryland charter
of 1632, which provided for a colonial assembly, stipulated
not only that laws should be not repugnant and that they
be "(so far as conveniently may be) agreeable" to those
of England, but also that they be "consonant to reason," '
— a restriction which appears in many subsequent grants of
importance.* The Privy Council decided in 1629 that laws
" ordained " by the " grand assembly " of Virginia " must
be temporary and changeable at the King's pleasure," and in
1638 they agreed that Virginia laws should be " corres-
pondent to the lawes of England and but Probationers onely
untill confirmed here." ° Despite its inaction, therefore,
the British government assumed from the first that colonial
laws should be as nearly as possible in conformity with
those of England, and that the enactments of a royal colony
^ Macdonald, Select Charters, p. 19.
* Ibid., pp. 27, 41.
» Ibid., 56, 57.
* The proviso that laws be "consonant" or "reasonable" appears in
the first Carolina charter of 1662-3, the New Jersey " Concessions "
of 1664-S, the Pennsylvania charter of i68o-i and the Georgia grant of
1732. Macdonald, op. cit., pp. 120, 141, 186, 241. It was, however,
omitted from the patent of the Providence Plantations in 1643, the Con-
necticut charter of 1662, the Rhode Island charter of 1663 and the grant
to the Duke of York. Macdonald, op. cit., pp. 91, 1 16, 125, 138.
^Calendar of State Papers, Colonial Series, 1574-1660, p. 100. Acts
of the Privy Council, Colonial Series, vol. i, p. 239.
l8 REVIEW OF COLONIAL LEGISLATION [436
were subject to review and confirmation, and even to re-
vision, at home.
By insisting, later, upon the submission of legislation,
the crown was but adopting a precedent of the proprietary
governments, of which it was, in some cases, the successor.
Thus, the Virginia company in sanctioning the establish-
ment of an assembly there, had provided that " no Law or
Ordinance . . . should . . . continue in Force or Validity
unless the same ... be solemnly ratified and confirmed in
a General Quarter Court in England, and . . .returned to
them under our Seal." And in like manner the New Jersey
Concessions and Agreement of February, 1665, granted the
power of making laws which should be presented to the
Lords Proprietors for ratification within one year of their
enactment.^
Moreover, during the thirty years subsequent to the Res-
toration there was a considerable economic development in
the colonies, and a corresponding increase in the number
and prestige of their assemblies. At the same time there
occurred in England a revival of royal power, and the con-
sequent development of a fairly comprehensive colonial
policy. Under such circumstances it was inevitable that
the home government sooner or later should come to realize
the necessity of reviewing colonial enactments. Otherwise
the assemblies themselves became sole judges of what was
consonant to reason and conformable to the laws of Eng-
land, as well as the final arbiters whenever their economic
interests in regard to quit-rents, fees, trade, or the estab-
lishment of revenue came into conflict with those of the
crown.
It was all but inevitable, also, that the task of review
^ Macdonald, op. cit., pp. 34-36, 143. The laws of Maryland, the
Carolinas and the Bahamas were also subject to a proprietary dis-
allowance.
437] INTRODUCTORY IC)
should be assumed by the Privy Council. Except during the
Commonwealth, the crown had always been the branch of
the English government most actively concerned with the
settlement and control of plantations; and England was
now in the midst of a reaction from parliamentary to royal
government. Nor were the administrative tasks incident
to a closer supervision of the colonies suitable to perform-
ance by a legislative body.
On July 4, 1660, there was appointed by order in council
a Committee of the Privy Council, to meet Mondays and
Thursdays for the consideration of " petitions, proposi-
tions, memorials, and other addresses . . . respecting the
Plantations." Most of its members were great officers of
state. Its functions were deliberative and advisory.^ But
the importance of this standing committee was eclipsed,
for a time, by the appointment of separate and subordinate
councils of trade and plantations.
A council for foreign plantations, consisting of " six
noblemen and forty two other noblemen and gentlemen,"
of whom any five were to constitute a quorum, was com-
missioned on December i, 1660. A larger body than the
committee, its membership comprised not only Clarendon
and the "Great Officers of State " — the latter being at the
same time members of the Privy Council and its commit-
tees— but also a second group of administrators and men
actively identified with colonial enterprise. These colonial
experts constituted the usual working quorum, the cooper-
ation of the councilors being sought in matters of special
importance. This body was instructed to g^ve an account
* Beer, G. L., Old Colonial System, vol. i, p. 228. Acts of the Privy
Council, vol. i, Introd., p. xiii. New York Colonial Documents, vol. iii,
Introd., p. xiii. Special committees of the Council, also, were ap-
pointed occasionally for specific purposes, — one on the state of Jamaica
in October, 1660, for example, and a committee for New England in
1661. A. P. C, vol. i, Introd., p. xiv.
20 REVIEW OF COLONIAL LEGISLATION [438
of the laws and government of each colony " in what
modell and frame they move and are disposed." ^ There is
no evidence that it examined the colonial laws in any com-
prehensive or systematic fashion; although it does appear
that, from this time on, the royal colonies sent their acts
to England with fair promptitude and regularity,^ After
a period of considerable activity this council came to an end
in 1665, leaving the control of colonial affairs once more
with the Privy Council and its committees.
In 1670 the combined oversight of trade and foreign
plantations was again intrusted to a subordinate council — a
smaller group with salaried members, who advised with the
noblemen and great officers upon special occasions. With
its committees this body proved an effective instrument of
colonial control. It carefully scrutinized legislation " to
see if it were not detrimental to English or imperial inter-
est." ^ But this was among the least of its manifold activi-
ties during a career, the briefness of which necessarily pre-
cluded the development of a consistent policy regarding
■colonial legislation. Various causes, among which were a
lack of executive power and a consequent dependence upon
the Privy Council, together with a widespread demand for
^economy and retrenchment in administration, led to the
revocation of its commission in December, 1674.* In 1665,
* A'', Y. Col. Docs., vol. iii, p. 35.
^ One hundred and thirty-eight Virginia acts are mentioned in March
1662. Others follow in December 1662, September 1663 and September
1664. C. S. P., 1661-8, pp. 82, 115, 162, 235. Barbadoes acts appear
regularly after 1650 and Jamaica acts after 1661.
^ Beer, op. cit., vol. i, p. 247. Evelyn " was on the Committee with
;Sir Humphrey Winch, the Chairman, to examine the Laws of His
Majesty's several Plantations and Colonies in the West Indies."
'Evelyn's Diary, November 8, 1672. Quoted by Beer, note 2.
* Beer, op. cit., vol. i, pp. 253, 254. N. Y. Col. Docs., vol. iii, Introd.,
p. xiv. Andrews, "Committees, Commissions and Councils" in the
./. H. U. Studies, vol. xxvi, pp. 97, 103.
439] INTRODUCTORY 21
during the brief interval between the tenure of subordinate
councils, the committee of the Privy Council considered
seven laws from the Island Colonies and recommended their
confirmation. The committee objected, however, to a pro-
viso exempting certain lands in a Barbadoes impost act,
and this clause the Council "disallowed and made void,'*
although the act itself they confirmed.^
By an order in council of March 12, 1675, all matters
" left loose and at large " by the dissolution of the council
of trade and plantations, reverted to the committee of the
Privy Council. The committee, officially styled " the Right
Honorable, the Lords of the Committee for Trade and
Plantations," which thus resumed entire control of colo-
nial affairs, consisted at this time of twenty-one councilors,
who met at least once a week, reporting to the Council from
time to time.^ Although subject to occasional changes in
organization and membership, and subordinate always to
the Privy Council, it remained the administrative center of
the plantations from 1675 until the establishment of the
Board of Trade in 1696. Save, perhaps, for a period of
apathy and procrastination extending from 1681 until the
Revolution of 1688, its review of colonial legislation was
far more systematic and effective than that of its prede-
cessor.
Prior to 1685 the royal colonies, whose acts alone were
> C. S. P., 1661-8, pp. 162, 189, 293. A. P. C, vol. i, p. 396.
2 William Blathwayt, who had spent " some time in this service," was
appointed " to continue always as an assistant to the Clerk of the
Council at 150 pounds per year." A. P. C, vol. i, p. 665. In Novem-
ber 1677, the Council raised Blathwayt's salary to 250 pounds, " for his
great pains and application to your Majesty's Service in the Business of
Trade and Plantations." A. P. C, vol. i, p. 743. Nine members were
designated to have immediate care of matters in regard to which they
had been formerly conversant, any five to be a quorum. A. P. C,
vol. i, p. 619. A^. Y. Col. Docs., vol. iii, Introd., p. xiv.
22 REVIEW OF COLONIAL LEGISLATION [440
subject to review in England, were: Jamaica, Barbadoes,
the Leeward Islands and, on the continent, Virginia. New
Hampshire, it is true, became a royal colony in 1680, but it
submitted no laws until after the year named. During an
important period, therefore, when precedents were in the
making, and policy in process of rapid formation, the action
of the Privy Council upon colonial legislation was confined
very largely to the Island Colonies.
In 1679 the attention of the committee was directed to
several Barbadoes laws, passed between 1660 and 1672, by
a complaint lodged against the revenue acts of 1675 and
1678 by the farmers of the provincial revenue.^ The gov-
ernor's instructions had authorized his assent only to laws
of two years' duration, which should be transmitted "with
all convenient speed " for his majesty's allowance. When,
therefore, the committee found that the more important of
these acts were limited in duration to four, five and six
months, and that excepting revenue acts, " never any one
was ever yet sent over," they expressed disapproval of the
governor's conduct and agreed that subsequent legislation
should be " indefinite and without limitation of time,"
and be transmitted " within three months or sooner." ^
Their decision received formal embodiment in Governor
Button's commission issued in 1680. This provided that
laws should continue in force until disallowed by his maj-
esty, and that upon pain of the forfeiture of one year's
salary the governor should transmit them under seal within
three months, sending duplicates by the next conveyance.'
^ Board of Trade Journal, vol. iii, p. 30.
^ B. T. J., vol. iii, pp. 30, 34, 35- C. S. P., 1677-8, p. 388. A. P. C,
vol. i, p. 857.
■'' B. T. J., vol. iii, p. 183. Similar instructions were issued to John
Cutt, President of the Council in New Hampshire, in 1680, and to
Governor Cranfield in 1681. A'^. H. Prov. Papers, vol. i, p. 379. Entry
Books, in the Public Record Office, London, CO/5-940, p. 39.
441 ] INTRODUCTORY 23
Later, when the committee received a militia act limited to
three months, the governor was directed more explicitly to
pass no law concerning the government " which hath not
a temporary end in any other terms than such as should
render the same indefinite." ^ By the adoption of these
provisions, which became thenceforth a part of the cus-
tomary form for instructions to governors, the English
government reversed its early policy of insisting that colo-
nial laws be of limited duration.
During its consideration of these Barbadoes acts the
committee sought from " the Judges " legal advice upon
four questions, the scope and penetration of which reveal
how thoroughly the powers of the crown in regard to colo-
nial legislation were considered. They inquired: "(i)
Whether the laws of Barbadoes remain perpetually in force
without the King's confirmation. (2) If the King confirm
[a law], may the Governor, Council and Assembly repeal
it without [his] consent? (3) Can laws sent to England
be amended or must they be [wholly] allowed or rejected?
(4) May the King at any time declare dissent to laws which
he has not confirmed, and do such become void imme-
diately." ' Apparently these questions received no authori-
tative answer at this time, although, judging from the terms
of Governor Button's commission, the committee seem to
have decided the first and the fourth in the affirmative.'
In 1676 the committee " took in hand " certain acts of
Jamaica, " all bound up in a particular book." Their lord-
ships expressed themselves as not pleased with certain fea-
» B. T. /., vol, iv, p. 247. B. T. /., vol. v, p. 137.
» C. S. P., 1677-80, p. 569. B. T. /., vol. iii, p. 180; 10 July 1680.
• In practice the crown ultimately answered the second and third in
the negative, although the possibility of a partial confirmation or dis-
allowance was considered at the Council as late as 1760. A. P. C,
vol. iv, p. 440.
24 REVIEW OF COLONIAL LEGISLATION [442
tures of these laws and proposed sundry amendments, agree-
ing that their alterations might be " approved of by the
Governor, Council and Assembly, without reenacting them,
and sending them back for His Majesty's approbation
again." ^ But the willingness of the committee thus to
expedite matters was of nO' avail, for the assembly never
conceded that its laws could be amended in England. Some
months later the committee noted that the term of two years
during which these acts were to continue in force was
almost expired, and again undertook their consideration.
" Upon the whole matter," their lordships decided to refer
them to the attorney general for his opinion " how far
they are fit to be allowed by His Majesty." They also de-
sired him to prepare a bill, like Poyning's Law in Ireland —
which authorized the Irish Parliament to pass only such
bills as were submitted to it by the crown and the English
Privy Council — directing the manner of enacting, trans-
mitting and " amending the laws of Jamaica by His Maj-
esty here in England." ^ In other words, the committee
not only assumed power to amend the laws of Jamaica, but
also determined that for the future none should be enacted
there save such as were drafted in England and transmitted
to the colony for ratification.
Because of delay upon the part of the attorney general,
no further action was taken until September, 1677, when
the committee received additional acts from Jamaica. Upon
examination, these were found " prejudicial to His Maj-
esty's Prerogative and authority," and after debate it was
reaffirmed " that noe Law be assented unto by the Gov-
ernor untill it bee first approved by the King." " The
Governor to present to His Majesty a scheme of such Laws
1 C. S. P., 1675-6, p. 394. B. T. J., vol. i, pp. 118, 120, 121, 127.
2 Beer, Old Col. System, vol. i, p. 210. C. 5". P., 1677-80, pp. 65, 67.
B. T. J., vol. ii, pp. 26, 42.
^3] INTRODUCTORY 25
as hee shall think fit and necessary- according to the . . .
exegencies of affairs, that His Majesty may take [them]
into consideration and return them in the forme wherein
he shall be pleased to have them enacted." ^ These acts
likewise were dispatched to the attorney general, not only
to be examined, but also to be " framed " and " modeled "
according to their lordships' intent.^ Four days later the
committee resolved more definitely " to frame a body of
Laws such as are fit for the Earl of Carlisle (the new Gov-
ernor) to settle on his arrival at Jamaica." ' They also
questioned the attorney general whether a revenue act of
1672 might not be revived and made perpetual; and when
he replied, that by the terms of the governor's commission
such a proceeding would require the consent of the assem-
bly, some of the members urged that a former governor
had made laws without an assembly. But the committee
contented itself with carefully framing a permanent revenue
act with the assistance and approval of the lord treasurer
and the commissioners of the customs.* At length, in De-
cember, 1677, the attorney rendered his long-deferred re-
port, presenting such a body of laws as he conceived fit to
be passed by the assembly. In this form they received the
approval of the committee, the sanction of the Privy Coun-
cil and the stamp of the great seal.*
The Jamaica assembly, however, refused to endorse the
laws thus carefully drafted. They complained that the
' B. T. J., vol. ii, pp. 67, no, in, n2.
»Z?. T. J., vol. ii, p. n4.
*B. T.J., vol. ii, lis.
* B. T. I., vol. ii, 195. Beer, op. cit., vol. i, p. 210.
'Thirty-seven laws were approved on February 15, 1678. The com-
mittee were in doubt whether they should be confirmed by Order in
Council, or passed under the great seal, and the Council decided for the
latter procedure. A. P. C, vol. i, pp. 761, 763. B. T. I., vol. ii, 172,
195. C. S. P., 1677-80, p. 601.
26 REVIEW OF COLONIAL LEGISLATION [444
committee's revenue bill was perpetual and the revenue
liable to be diverted ; that distance rendered this manner of
passing laws wholly impracticable; and that the plan de-
prived them of all deliberative power/ The committee, in
their report upon this remonstrance, mentioned the advan-
tages which would accrue to the colony from an established
body of law. The late power of making temporary acts —
a mere expedient, resorted to only until " wholesome laws
founded on many years' Experience should be agreed on
by the people and finally enacted by Your Majesty " — had
been abandoned because of " irregular, violent and unwar-
rantable proceedings " on the part of the assembly. They
suggested, also, that if the assembly persisted in their obsti-
nate course, the governor might be given power to ignore
them and to govern according to the laws of England with
the advice of the council.^
Meanwhile the Jamaica assembly had twice rejected the
permanent revenue bill sent over for their ratification, and
had passed another conceived " according to their own will
and humor," which granted a revenue for one year only
and contained an obnoxious clause exempting Jamaica ships
from all manner of impositions.^ Consideration of this act
led to renewed discussion as " to how far English laws and
methods of government ought to take place in Jamaica."
Four questions as to the royal power of making laws there
were referred to the attorney and solicitor general.* Their
content is not given, but they were probably identical with
the four questions propounded on this subject in connection
with the Barbadoes acts.^ The attorney general found them
M. P. C, vol. i, p. 828.
^ C. S. P., 1677-80, pp. 367-369. A. P. C, vol. i, p. 833.
'5. T. /., vol. iii, pp. 94, no.
M. P. C, vol. ii, p. 6.
5 C. S. P., 1677-80, p. 569, supra, p. 23.
445] INTRODUCTORY 07
"of such difficulty and moment" as to require the opinion
of the judges, and a conference between the judges and
the attorney was held, apparently in the presence of the
committee/ The result was a definitive opinion from the
attorney general that the colony should be governed " by
such laws [only] as are made there and established by His
Majesty's authority." ^ Reluctantly the committee now re-
ceded from their untenable position. With the assistance
of Chief Justice North, an agreement was effected between
their lordships and certain gentlemen of Jamaica, whereby
the assembly was to pass a perpetual revenue bill, together
with a bill for the payment of contingencies to continue
seven years — the proceeds from quit-rents and the tax on
wine licences to be appropriated solely to the support of
the government. On the other hand, the power to make
laws which should continue in force until disallowed — a
privilege already enjoyed by Barbadoes — was conceded to
the assembly of Jamaica.' In accordance with the terms of
this agreement, the Earl of Carlisle was instructed to call
an assembly, which was empowered to make laws " with
the advice and consent of the Governor and Council." Car-
lisle was to "endeavor to procure" the passing of a revenue
bill according to a draft sent over by him, and to permit no
material variations from it* These instructions mark the
victory of the Jamaica assembly in the constitutional
struggle which decided once for all that colonial laws should
be passed not by the Privy Council, with the consent of the
governor, council and assembly, but by the governor, council
and assembly with the consent of the Privy Council.
> B. T. J., vol. iii, p. 167.
' B. T. J., vol. iii, p. 167 ; 27 April 1680.
^B. T. J., vol. iii, pp. 214, 220, 221. C. S. P., 1677-80, p. 621. Beer,
op. cit., vol. i, p. 211.
*C. S. P., 1677-80, pp. 623, 624; 3 November 1680.
28 REVIEW OF COLONIAL LEGISLATION [446
On receiving information, a year later, that the assembly
had passed several laws without establishing the desired
revenue, the Privy Council issued a warrant declaring these
laws void if no revenue bill were passed before the arrival
of Lynch, the succeeding governor/ This is the only case
recorded in which laws were disallowed conditionally before
being submitted to the Council.
With difficulty the governor (Morgan) secured a revenue
act within the prescribed time. But it was for seven years
only, and objectionable also because it provided that the
governor should account to the assembly for expenditures
each year, thus rendering an annual assembly obligatory.
Furthermore, it was to be void if the other laws " tacked
to it" were "altered or diminished " — an unjustifiable effort
to oblige the king to confirm all the other laws in perpetu-
ity.^ The Council insisted that until the assembly should
amend this, no action would be taken upon any of the
Jamaica laws. It was further suggested that the laws of
England, by no means excluding the duty of tonnage and
poundage and tax upon wines, would be enforced there.®
In the following year Governor Lynch secured a revenue
act which repealed its predecessor and satisfied the exactions
of the home authorities. This, also, was limited to seven
years, and the Council in confirming most of the other
Jamaica laws did so for a like period. Of the remaining
acts, one was disallowed and several were returned with
suggested amendments.^
^A. P. C, vol. ii, pp. 25, 26; October 1681.
2 C. S. P., 1681-5, p. 316.
' B. T. I., vol. iv, 74. Beer, op. cit., vol. i, p. 218.
M. P. C, vol. ii, p. 833. B. T. J., vol. iv, pp. 109, no, in. The
journal notes "His Majesty's great Grace and condescension * in
confirming the laws * for seven years whereby he puts it out of his
power to vacate them within that time if he should think fit." This
447] INTRODUCTORY 29
Grovernor Lynch subsequently secured an extension of the
revenue for twenty-one years, and the Council re-confirmed
the Jamaica laws, with one exception, for the same period/
These constitute the only cases in which the Privy Council
confirmed colonial acts for a limited time.
The action of the Council upon Virginia legislation dur-
ing this period follows a cycle similar to that pursued in
the case of Jamaica, except that the government was more
conservative in its exactions while the assembly proved
more complaisant. In 1677 the committee examined cer-
tain laws passed since Bacon's Rebellion, and sought the
opinion of the attorney general and of the royal commis-
sioners to Virginia upon them.* The committee reported
after consideration that three of these acts for the punish-
ment of participants in the late rebellion conflicted with the
terms of his majesty's proclamation of amnesty, and ex-
ceeded the legislative powers of the Virginia government.
Their lordships recommended, therefore, that they be " Dis-
annulled and abrogated," and that other laws "more agree-
able to His Majesty's justice and honour be prepared and
sent to Virginia." *
A few months later two packets of "Orders and Acts of
the Assembly " were received, together with a complaint
was done despite a clause in the governor's commission providing that
laws should be in force "until our pleasure be signified to the con-
trary." A. P. C, vol. ii, pp. 46, 47. Twenty-eight acts were confirmed,
many of which were> modeled upon those sent over in 1678 and re-
jected by the assembly.
' B. T. /., vol. iv, p. 263. Beer, op. cit., vol. i, p. 219.
»C. 5". P., 1677-So, p. 139. B. T. /., vol. ii, p. 174-
*B. T. /., vol. ii, pp. 180, 181. A. P. C, vol. i, pp. 757-76o; 18 January
1678. CO/5-1355, pp. 222, 227. These laws, passed at Green Spring
in February 1676 were entitled (i) "Indemnity," (2) "Attainder" and
(3) " Inflicting Paines, Penalties and Fines upon Great Offenders."
Their repeal was again recommended by the committee in April 1679,
B. T. /., vol. ii, p. 327.
30 REVIEW OF COLONIAL LEGISLATION [448
that his majesty's commissioners had forced from the clerk
of the assembly the original journals. Observing unsym-
pathetically that the assembly should be brought to a "due
sense of their duty and submission," the Council ordered
the committee to prepare " such a Scheme of Laws and
Orders as they shall thinke fitt to be approved and trans-
mitted unto Virginia." ^ The committee acquiesced and
resolved to send over a body of laws under the great seal
of England, to be confirmed by the assembly.^ But this
plan had to be abandoned because there was not sufficient
time to complete the proposed revision before the departure
of Governor Culpeper for the colony, and because many
of the existing laws had never been transmitted.^ It is by
no means impossible, also, that intimations of the recalci-
trant attitude of the Jamaica assembly had already reached
the English authorities. It was agreed, therefore, that Cul-
peper, after his arrival, should consider and compile, with
the assistance of his council, all the Virginia laws and send
them to England, " that we may take them into considera-
tion and return them in the form we shall think fit they be
enacted in." * Meanwhile the revenue act and such others
as were absolutely necessary were to be amended as pro-
posed and sent over by the new governor. Three acts, for
" Naturalization," for a "General Pardon and Oblivion,"
and for " Raising a Public Revenue " were accordingly
drafted and entrusted to Lord Culpeper, together with a
* A. P. C, vol. i, pp. 789, 790.
* Also * " wherein all defects in the stile may be amended and all
forfeitures granted to the King only, Particularly wherein several
clauses in the act raising two shillings per Hgs. on tobacco exported
* may be explained and amended, and several frauds hindered."
CO/5-1355, p. 238.
* CO/5-1355, p. 258, Marginal note.
* CO/5-1355, p. 313.
449] INTRODUCTORY 3 1
warrant for his giving assent when they should be passed
in Virginia.^
The assembly " thankfully embraced " the act of pardon,
and passed with some reluctance those of naturalization
and revenue. But when the latter was examined in com-
mittee, it was found to contain a clause exempting Virginia
owned or built ships from the taxes imposed.'' Their lord-
ships, desiring to save the grant of revenue, but loath to
accept the obnoxious proviso, which " Lord Culpeper had
no power or direction to add," cited as a precedent the
Barbadoes revenue act and suggested that the law be con-
firmed and the objectionable exemption disallowed. This
was done by an order in council of October 14,1680, dated
three weeks prior to Carlisle's instructions, which embodied
the government's compromise in the Jamaica controversy.
The partial disallowance of this act was hardly a violation
of the powers conferred upon the assembly by Culpeper's
immediate instructions. But that the committee neverthe-
less felt the weakness of their position is shown by the care
with which they cited the Barbadoes act as a precedent.'
During the period under consideration, the number of
royal provinces was increased by four. New Hampshire
obtained a separate legislature in 1680 and New York its
fivsi established assembly in 1691. The Massachusetts char-
ter of the same year required the submission of her laws,
while the Maryland proprietor gave way to a royal gov-
ernor in 1692.
The commission of John Cutt, the first president of the
* CO/S-13S5. p. 258. C. S. P., 1677-80, pp. 450, 452. A. P. C, vol. i,
p. 818.
*C. S. P., 1677-80, pp. 558, 612. This act granted to the crown in
perpetuity the revenue from the two shillings per hogshead on tobacco
exported, from tonnage dues of one-third penny per ton, and from a
pole tax of six pence on every immigrant. Beer, op. cit., pp. 305-207.
' B. T. /., vol. iii, p. 210.
32 REVIEW OF COLONIAL LEGISLATION [450
council in New Hampshire, provided that laws passed by
the president, council and assembly should be in force pend-
ing confirmation or disallowance in England/ After con-
sidering the first laws sent from there, the committee pro-
nounced them " unequal, incongruous and absurd," and the
methods of the council and assembly in establishing them
"disagreeable and repugnant to the terms of Your Majesty's
Commission." They recommended that all these acts be
rejected and a suitable person commissioned as governor.^
This drastic action was due probably not so much to in-
herent defects in the laws, as to the fact that the assembly
had presumed to take part in local land controversies and
to confirm certain disputed township grants. Other acts,
subsequently passed, met with a more favorable reception;
but the assembly was so prone to indulge in unfruitful dis-
putes with the governor that comparatively few laws were
passed prior to 1696.
The first assembly of New York was called by Governor
Dongan in 1683. Acts agreed to by the governor and
assembly were to be in force until the Duke of York should
signify his "dislike of & refusall to passe them." ^ Thir-
teen acts were assented to by the Duke on October 4, 1684.
One of the laws transmitted, entitled the "Charter of Lib-
erties and privileges," which was at once a bill of rights
and a frame of government, was compared unfavorably by
the committee with the "Commissions by which the gov-
ernment of other Colonies is settled," and was disallowed,
in view, it was alleged, of the intended consolidation of
New York with New England.^ Indeed James, now King,
^ C. S. P., 1677-80, pp. 390, 391. N. H. Prov. Papers, vol. i, p. 379-
2 C. S. P., 1681-S, pp. 174, 182. CO/s-940, pp. 58, 59-
^ Col. Laws of New York, vol. i, p. no. Col. Docs., vol. iii, p. 332.
* A^. Y. Col. Laws, vol. i, p. in. CO/5-1111, p. 61. CO/S-1112, p. 53.
B. T. J., vol. V, pp. 91, 100. C. S. P., 1685-8, p. 7. A^ Y. Col. Docs.,
vol. iii, pp. 357-359-
45 1 ] INTRODUCTORY 33
not only annulled the "Charter," but revoked his grant of
an assembly as well. Consequently, until the assembly called
by Slaughter in 1691, the acts of New York were drafted,
as before, by the governor and council. After 1691, New
York laws were transmitted regularly to England; but
owing to the laxity of the committee at this period, their
consideration was deferred, for the most part, until after
the formation of the Board of Trade.
Copley, the first royal governor of Maryland, was com-
manded to revise the laws in force, and to send over a
complete body of them for approbation or disallowance.
But the committee took definite action upon only four laws
prior to 1696. A tonnage act was disallowed at the insti-
gation of Lord Baltimore ; while two acts for the " Estab-
lishment of a Protestant Religion " and an act for " Erect-
ing Free Schools," all subjects of contention within the
colony, met a like fate in January, 1696.^
In 1676, during a debate as to the status of New Eng-
land in reference to royal control, the committee questioned
whether Massachusetts laws " should not have like appro-
bation from His Majesty as in other Plantations." ' As
a result of complaints from Edward Randolph, the Council
ordered the Massachusetts agents to attend Solicitor Gen-
eral Winnington with copies of their charter and laws.*
The attorney and solicitor each rendered a report citing
many acts which were repugnant to the laws of England,
and consequently contrary to the terms of the charter.* In
> CO/5-713, p. loi. CO/5-724, p. 20. C. S. P., 1693-6, pp. 31, 636.
» C. S. P., 1675-6, p. 350.
• D. T. /., vol. ii, p. 61. A. P. C, vol. i, pp. 725. 726; 20 July 1677.
* The Massachusetts charter granted the common privileges of a cor-
poration, with the reserving clause that laws be not repugnant to the
laws of England. C. 5". P., 1677-80, p. 140.
Regarding these laws the attorney general remarked somewhat naively
that the agents of the colony were themselves " in a manner ashamed
34 REVIEW OF COLONIAL LEGISLATION [452
order to preserve their privileges, the Massachusetts author-
ities agreed to several conditions, one being that the objec-
tionable acts should be annulled by the colony and due care
taken that no more such be made in the future/ From time
to time during the next few years the committee scrutinized
and even amended the laws of New England with a view
to their suitability after the proposed annulment of the
charter.^
In considering the draft of a new charter, the committee
insisted that Massachusetts acts be subject to disallowance
by the Privy Council. It was suggested at first that they
should be transmitted within one year and be void if dis-
allowed within a like period after they were received.*
Later it was proposed that they be transmitted " at the
first opportunity," to become void if disallowed at any time
thereafter. But the agents for Massachusetts objected
strongly to the latter proposal, urging that the period dur-
ing which acts might be disallowed be eighteen months.
The final draft of the charter fixed this period at three
years, and stipulated definitely that unless declared void
within that time after presentation, laws should "continue
in force until the Expiration thereof or until Repealed by
the General Assembly." *
of them, only as regards that concerning the observation of the Lord's
Day they seemed somewhat tenacious." The criticisms of the law
officers were set forth at some length " as a guide that the Massachu-
setts may proceed according to their patent," and the agents were
called in and consulted as to improvements. C. S. P., 1677-80, pp. 139-141.
^Proposals from the Agents. C. S. P., 1677-80, p. 366; 23 May 1679,
An account of what had been done by the Colony, from Joseph.
Dudley and John Richards, B. T. /., vol. iv, 47 ; 24 August 1682.
2 C. 5. P., 1681-S, pp. 415, 752, 762, 764. B. T. /., vol. V, pp. 57, 78.
B. T. /., vol. vi, p. 81.
»CO/5-8s6, p. 511.
*C. S. p., 1689-92, pp. 470, 511. Goodell, Acts and Resolves, vol. i,
p. 17. B. T. I., vol. vii, p. 2>2.
453] INTRODUCTORY 35
Fifty acts of 1692, the first passed under the new char-
ter, were duly submitted to the Privy Council, and referred
to the committee, who, despite an elaborate criticism of
them submitted anonymously by a resident of the colony^
took no action thereon until March, 1695/ ^^ several
meetings held during the spring of 1695 they were taken
up and carefully considered. On June 4th the committee
agreed to recommend the confirmation of thirty-eight acts.
Eight they found objectionable and urged for repeal, while
three acts of a general nature — " Punishing Capital Offen-
ders, " Establishing Courts," and " Securing the Liberty
of the Subject " — they criticized without definite recom-
mendations as to confirmation or disallowance. The Coun-
cil confirmed thirty-five acts and disallowed fifteen — seven
more than the committee had recommended — a fact which
shows that the latter's weakness and indecision, at this time,
was to some extent offset by the exercise of discretion upon
the part of the Privy Council.*
The laws of 1693-4 were also presented to the Council,
and by them referred to the committee. Two acts concern-
ing commerce and navigation the latter body sent at once
to the lords and commissioners of the treasury; the re-
mainder, as usual, to the attorney general.' The commis-
sioners of customs consulted a revenue collector for New
England who chanced to be in England, and reported ob-
jections against the two acts referred to the treasury. The
committee recommended that they be disallowed, and the
Privy Council complied by an order in council of the same
date.*
» C. S. P., 1689-92, p. 730.
'5. T. /., vol. viii, pp. 10, 16, 23, 26, ap. CO/S-906, pp. 187, 194.
C. S. P., 1693-6, pp. 497, 498.
* B. T. J., vol. viii, pp. 52, 125.
* 26 December 1695 ; C. S. P., 1693-6, p. 633. CO/5-906, pp. 206, 209.
(i) "Coasting Vessels .within the Province" and (2) "To Restrain the
Export of Raw Hides."
36 REVIEW OF COLONIAL LEGISLATION [454
The report of the committee upon the remainder of these
acts was made in February, 1696, and in accordance with
its recommendations several of them w^ere disallowed by
the council in the following December. After noting a dis-
crepancy between an act for establishing courts and a for-
mer law of the colony upon the same subject, the report
continues: "Agree to represent the matter especially in
Council." This, again, would indicate deliberation in the
Council meetings, as well as a tendency upon the commit-
tee's part to defer the solution of difficult problems to their
superior body.^
The grants to the proprietors of Carolina and Maryland
empowered them to make laws with the consent of the free-
men, stipulating that such legislation should be consonant
to reason and not repugnant to the laws of England.^
Nothing was said regarding submission to the Privy Coun-
cil. By virtue of their control over the governor and his
veto, therefore, the proprietors possessed virtually a double
check upon the legislation of their colonies, while the king
in council had none. In response to general inquiries re-
garding the state of his province, Charles Lord Baltimore
responded in 1678: "The Laws are generally temporary,
and continue only for three years. Where the exigencies
of the Province do not force any particular laws to be made,
no other laws are used than those of England." Copies of
Maryland acts were sent to the Privy Council more or less
regularly, but no action was taken upon laws from this
colony until it became a royal province in 1692. One act
of Carolina, however, for " Restraining Privateers and
Pirates " v^as drafted by the committee and passed by the
assembly at its request.*
1 Report, CO/5-859, p. II.
^ Macdonald, Select Charters, pp. 53, 120.
8 B. T. J., vol. iv, p. 272. C. S. P., 1685-8, p. 338.
455] INTRODUCTORY 37
The preliminary draft of Penn's charter, based upon that
of Maryland, granted legislative powers under like condi-
tions except that, in time of emergency, the proprietor alone
could issue ordinances. When this draft was submitted to
Lord Chief Justice North, he observed: "There wants a
clause to enable the King within [blank] years to repeal
the laws and ordinances of either sort." ^ The final draft
of the Pennsylvania charter, accordingly, provided that a
duplicate of laws should be delivered to the Privy Council
within five years after their passing. Acts disallowed within
six months of their presentation were to become void;
otherwise to remain in force unless they expired of their
own limitation or were repealed by the assembly.' Thus^
by virtue of a charter granted just as the general drift
toward the royal province was setting in, Pennsylvania be-
came the only proprietary government whose laws were-
subject to review by the Privy Council. Because of the dis-
parity between the time allowed the colony for the presen-
tation of its laws and the short term within which they had
to be examined, this arrangement proved far from satisfac-
tory to the English government.
Despite the proprietor's instructions to the governor that
the laws be collected and " sent over in a stitcht book," *
some two hundred acts passed during the first eleven years
of the colony's existence had never been transmitted when
Fletcher assumed the governorship by royal appointment
in 1693. H^ declared them invalid because they had never
been submitted for approval, and because he conceived
Penn's charter to have been contrary to the laws of Eng-
land, and consequently invalid.* The assembly afterwards
' C. 5. P., 1677-80, pp. 629, 632 ; November 1680.
' Pa, Charters and Laws, vol. i, of the Statutes at Large, p. 84.
' Instructions to Blackwell, Pa. Records, vol. i, p. 318, 1689.
* Pa. Stats, at Large, vol. i, appendix, pp. 547, 548.
38 REVIEW OF COLONIAL LEGISLATION [456
presented to the governor a " Petition of Right," citing the
terms of the former charter and asking that the adminis-
tration of justice be agreeable, for the time being, to eighty-
six of the rejected laws therein enumerated. To this Gov-
ernor Fletcher agreed. Many of these acts were subse-
•quently re-enacted and considered by the Board of Trade,
after 1696.^
Thirty acts passed by Fletcher in May, 1693, were duly
transmitted, and were referred to the attorney general, with
the request that he report upon them in order that they
might be considered by the committee, together with a peti-
tion from Penn asking reinstatement to the proprietorship.
The attorney general rendered a formal report, taking ex-
ception to three of the laws.^ On August 9, 1694, after
consultation between the committee, Penn and the attorney
general, the former reported favorably upon Penn's peti-
tion. It was recommended also that twenty of the acts be
confirmed, twO' repealed, and that six be returned to the
assembly for further consideration. Penn, as Proprietor,
agreed that the latter should be in force until altered or re-
voked by the assembly. This arrangement was sanctioned
hy an order in council on August 9, 1694.^
Perhaps the most important addition to the machinery of
legislative review made during this period was the custom
'of referring colonial legislation to the legal advisers of the
■crown, for an opinion as to its fitness " in point of law."
In the first recorded instance several Jamaica laws were
dispatched to the attorney general, together with the obser-
* Pa. Stats, at Large, vol. i, pp. 188-190, 220.
^ There is attached a postscript by Penn stating his objections to still
another. He probably consulted with the attorney before the latter
rendered his report. CO/5-1236, p. 49; 25 July 1694.
■•'C0/S-III4, p. 134. B. T. I., vol. vii, p. 309. CO/5-1236, pp. 48, 60.
457] INTRODUCTORY 39
vations of the committee upon them.^ This constitutes the
only instance in which a number of laws were referred after
having been considered at length by the committee. Sub-
sequently it became customary for the committee to refer
acts to the law officer at once, and to consider them later in
the light of his recommendations.
Two months later the attorney and solicitor general ren-
dered each a separate report as to the conformity of certain
Massachusetts laws with the terms of the charter. Although
these acts had been referred only to the solicitor, both offi-
cials rendered a report, and it was the attorney who appeared
in person before the committee when the matter was under
discussion there.' In 1679 the acts of Barbadoes were re-
ferred to Mr. Serjeant Baldwin, " one of His Majesty's
Councill Learned in the Law." ' Why they were sent to
him rather than to the attorney or solicitor general does
not appear. A few months later the committee ordered a
private act of Barbadoes "to Mr. Attorney for his opinion,
as is usual in like cases." * Thenceforth until 1696 laws
were sent, in the ordinary course of events, to the attorney
general; while matters of unusual difficulty or importance
were referred jointly to the attorney and solicitor generals.*
Thus, the attorney and solicitor reported jointly regarding
the extent of Penn's rights under the Pennsylvania charter,
1 Supra, p. 24.
*A. P. C, vol. i, p. 725; 20 July 1677. B. T. I., vol. it, p. loi.
*A. P. C, vol. i, p. 857. C. 5". P., 1677-80, p. 401. B. T. /., vol. Hi,
p. 174-
♦ B. T. /., vol. iii, p. 88; 6 November 1679.
' For example, a question as to the royal power of making laws for
Jamaica, and whether the disallowance of a law by order in council
revived a former law repealed by the act disallowed. The solicitor
alone rendered one report, concerning a dispute between Lord Balti-
more and the Maryland assembly, over a duty on tobacco. A. P. C,
vol. ii, pp. 6, 142, 246.
40 REVIEW OF COLONIAL LEGISLATION [^^g
while at the same time the attorney alone reported upon the
Pennsylvania laws/ During this period the attorney not
only rendered a written report upon laws, but also appeared
in person before the committee when they came up for con-
sideration there. Subsequently this practice was discon-
tinued, the Board of Trade contenting itself, in most cases,
with a written report.
Upon special matters, the committee often obtained ad-
vice and assistance of other officials. The lord chief jus-
tice helped to work out a compromise in the controversy
with the Jamaica assembly, and reported upon the draft of
Penn's patent for Pennsylvania.^ The lord chancellor and
the lord treasurer were asked to assist at the committee in
connection with the Jamaica laws; and certain acts passed
under the old charter of Massachusetts were referred to
the lord chancellor alone. ^ Revenue acts for Jamaica and
Virginia were drafted by the commissioners of customs;
and laws concerning trade, manufacture or shipping were
generally referred to them through the lords commissioners
of the treasury.* A memorial from the Lord Bishop of
London was considered in connection with the drafting of
a Jamaica act for the " Maintenance of the Ministry," but
the participation of that office in the review of colonial
legislation was of little consequence prior to 1696.
The governor's commissions and instructions — the near-
* C. S. P., 1693-6, pp. 310, 313 ; July 1694.
^B. T. /., vol. iii, p. 215. C. S. P., 1677-80, p. 632.
8 C. S. P., 1677-80, p. 65. B. T. J., vol. vi, p. 82.
*C. 5". P., 1681-5, pp. 157, 529. The report of the customs upon acts
of Virginia for establishing " Ports & Towns " and " Reviving an act
for Manufactures " was endorsed by the commissioners of the treas-
ury, and when the assembly refused to amend them as the committee
recommended, the whole matter was re-referred to the treasury. C. S. P.,
1689-92, p. 611. CO/5-1358, p. 162. B. T. I., vol. vii, pp. 104, 328;
29 June 1692.
459] INTRODUCTORY ^I
est approach to a fundamental law in the royal colonies —
empowered the governor, council and assembly, under vary-
ing restrictions, to make laws which should be subject to
royal disallowance. The subsequent demand of the Eng-
lish authorities that the Jamaica assembly adopt unaltered
acts drafted in England, constituted a violation of a pre-
vious concession which rendered the government's position
politically, if not legally, untenable. Other acts of the king
in council prior to 1696 were contrary to the fair implica-
tions of this grant, if not precluded by its express terms.
Such, for example, were the disallowance of clauses in the
revenue acts of Barbadoes and Virginia, and the insertion,
in a private act of Barbadoes for the sale of lands, of a
clause safeguarding the rights, both of the crown and of
certain heirs to the property affected.* Under Charles II,
Lord Howard of Effingham, when governor of Virginia,
was instructed to repeal three acts "when convenient," and
acordingly the laws were declared void by a proclamation
of the governor, without the customary order in council.
Some three years later the assembly complained of this
proceeding as "unwarrantable," and asked that the procla-
mation repealing an act regarding attorneys be revoked.*
When the matter was referred to the attorney and solicitor
generals, they simply assumed the legality of the proclama-
tion, and rendered an opinion that it revived a previous law
* This act was for " Enabling John Kirton to Sell certain Lands
for the Payment of his Debts." The committee probably knew that
the parties interested had no objection. A. P. C, vol. ii, 265. C. S. P.,
1693-6, pp. 219, 247, 276; 8 February 1694.
'These acts had to do with (i) the export of iron, (2) the manu-
facture of linen, and (3) attornies. E^rly in 1678 Lord Howard wrote
to the committee : the assembly " boldly dispute the King's authority
in the repealing of laws by proclamation." The animus of the as-
sembly's objection seems, however, not so much the fact of their having
been repealed by proclamation, as the loss of popular laws. CO/S-13S6,
p. 268. CO/s-1357, p. 125. A. P. C, vol. ii, p. 142.
42 REVIEW OF COLONIAL LEGISLATION [460
which the assembly had repealed in the act thus disallowed ;
while the committee suggested that the objectionable act
thus revived " might be repealed by a like proclamation." ^
The Privy Council, however, made little, if any, further use
of this method of disallowance.
In the case of several Virginia laws the council refused
to take definite action, and simply decreed that their execu-
tion should be wholly or partially " suspended." Thus it
was ordered that an act " to enable Major Lawrence Smith
and Captain William Bird to seate certain Lands " be
"forthwith suspended; and no proceedings had thereon till
His Majesty shall signify his further pleasure." As no
further action was taken in the matter, the law stood vir-
tually repealed.^ An act for the "Encouragement of Trade
and Manufacture" condemned as impractical by the com-
missioners of customs, was sent back to the colony for re-
consideration, with an order that the clause fixing the time
of its enforcement as to the landing of goods and shipment
of tobacco "be immediately suspended." ^ The Privy Coun-
cil took like action upon two laws, ( i ) for " Ports and
Towns," and (2) " Reviving a former Act regarding
Manufactures," passed ten years later, except that in the
latter case it wholly suspended the operation of the laws in
question.* The important subject-matter of these acts, to-
gether with the fact that they were to go into operation at
^ CO/5-1357, p. 219. C. S. P., 1689-92, p. 78. B. T. J., vol. vi, p. 254.
In 1716 Secretary Cook of Virginia in writing to the Board mentions
an act of 1676 regarding tobacco payments, and says : " In spite of
repeal by Proclamation, lawyers think the clause regarding who shall
not bear office is still in force." B. T. J., vol. xxvi, p. 40.
M. P. C, vol. i, p. 861 ; 6 August 1679.
" CO/S-1356, pp. 3, 4- C. S. P., 1681-5, pp. 157, 158; 21 December 1681.
Hening, Statutes, vol. ii, p. 508.
*The Assembly refused to take further action. CO/5-1358, P- 272;
10 October 1693.
461] INTRODUCTORY ^3
a future date, goes far to explain why this action was taken.
The more legitimate course, and the one which ultimately
prevailed, was that taken in 1685 in regard to a Virginia
law for " Holding Courts." This was neither confirmed
nor disallowed, but simply permitted to remain in force, the
governor being instructed to propose to the assembly the
passing of an amendment to safeguard the rights of the
crown. ^ In like manner six Pennsylvania acts were re-
turned to the colony for reconsideration, with the express
understanding that they continue in force until repealed or
amended there.* The object of the government in these
cases was to avoid the ill feeling and inconveniences result-
ing from the disallowance of laws beneficial in intent, by
inducing the assemblies themselves to eliminate certain ob-
jectionable features.
Attempts to impose laws unaltered upon the assemblies,
or to repeal acts except in their entirety and by order in
council, were a natural outworking of the policy of Charles
II. Both ceased, for the most part, with his reign; while
after the " Glorious Revolution " there was a complete
tolerance of the assemblies and a fairly scrupulous respect
for their autonomy.
» C. S. P., 1681-S, p. 747- B. T. /., vol. v, 54. Instructions, CO/S-I3S7,
p. 20; 13 August 1685.
* CO/5- 1 114, p. 134; 9 August 1694.
CHAPTER II
The Procedure of the English Government in Legis-
lative Review — The Board of Trade and Com-
mittee OF THE Council
In May, 1696, the old committee of the Privy Council
was dissolved and the center of English colonial adminis-
tration was shifted to the newly-formed " Lords of Trade
and Plantations," more commonly known as the " Board
of Trade." ^ Although subject to vicissitudes in influence
and efficiency, this body continued, until its final dissolution
eighty-six years later, to be the chief adviser of the Privy
Council in matters relating to trade and plantations. In
addition to numerous other activities, it examined all acts
received from the colonies. It heard complaints regarding
them from persons who felt that their interests were ad-
versely affected. It obtained from the law officers of the
crown an opinion as to their legality and, if necessary, re-
ferred them to other departments of the government for a
special report as to their probable effect and expediency.
In the light of information thus obtained, the Board of
Trade formally advised the Privy Council regarding the
confirmation or disallowance of the acts considered. And
in the great majority of cases its recommendations were
^ Books and papers in the plantation office relating to the committee
on trade and plantations were ordered to be delivered to Popple, Secre-
tory of the new board, " and all matters depending before the former
Committee to be referred to the said Council of Trade." The appellate
jurisdiction of the Privy Council, however, was retained in a standing
committee of the Council. A. P. C, vol. ii, p. 299; 7 July 1696.
44 [462
463] PROCEDURE IN REVIEW 45
accepted and made effective by orders in council. A study
of the administrative machinery and the procedure by which
the English government scrutinized colonial legislation,
therefore, begins naturally with some account of the his-
tory, functions and working habits of the Board of Trade.
The formation of the Board of Trade was due to a
movement in Parliament inspired by the English merchants
for the appointment of a special board of experts for colo-
nial and commercial affairs.* The crown opposed this
project as an encroachment upon its prerogative; but as a
concession to the sentiment of Parliament, it commissioned
the new Council of Trade and Plantations, with a salaried
membership controlled not by Parliament, but by itself.
The first Board was composed of the eight officers of state;
the lord chancellor, the lord president, the lord treasurer,
the lord high admiral, the principal secretaries of state and
the chancellor of the exchequer; together with eight mem-
bers of Parliament, two lords and six commoners, who
were more or less versed in colonial affairs. Among the
members of the first Board were William Blathwayt, who
had been secretary of the old committee for trade and plan-
tations, John Pollexfen, brother of the chief justice and a
merchant of the city, John Locke, the philosopher, who was
interested in Carolina, and Abraham Hill, whose collections
on trade and colonies were later deposited in the British
Museum.'' Any three members constituted a quorum, while
the great officers attended only when summoned to a "full
Board" for the consideration of important matters.' The
'Andrews, a study of " British Committees, Commissions and Councils
of Trade and Plantations," in the /. H. U. Studies, vol. xxvi, pp. 9-151.
' N. Y. Col. Docs., vol. iii, Introd., p. xv. Chalmers, George, Opinions
of Eminent Lawyers on points of English Jurisprudence, (Burlington,
N. J., 1858), p. 7, note.
' In 1702 the Bishop of London was added to those " not obliged to
constant attendance." They were expected to attend " only so often
46 REVIEW OF COLONIAL LEGISLATION [464
greater part of the work was done by the more active among
the commoners — usually a group of from three to five. A
secretary, appointed by the crown, and several clerks, ap-
pointed by the Board itself, performed a great amount of
routine business and carried on the ordinary work of the
office when their lordships were not in session/ At differ-
ent times, Matthew Prior the poet and playwright, Addi-
son the essayist, and Gibbon the historian were members.
Although the average duration of membership was consid-
erably less, several influential commissioners spent over
fifteen years in the service. Such were Paul Docminique,
Thomas Pelham and Saome Jenyns. Martin Bladen and
Thomas Ashe sat twenty-nine and twenty-six years, re-
spectively.
During the first sixteen years of its existence the Board
of Trade showed great activity and enjoyed much influence.
Meetings were frequent and well attended, and the scrutiny
accorded colonial laws was comparatively prompt and ex-
acting. Amid the uncertainty and party struggle of the last
two years of Queen Anne, however, this vigilance relaxed
and its activity was confined largely to matters of trade.^
as when the presence of them or any of them shall be necessary and
requisite and as their other public service will permit." jV. Y. Col.
Docs., vol. iv, p. 148.
^ For a full account of the Board's organization see an article en-
titled "The Board of Trade at Work" by Mary P. Clarke, in the
Am. Hist. Review, vol. xvii, p. 17, October 191 1.
^ An anonymous pamphlet of 1755 styled A Miscellaneous Essay,
which is in the British Museum, says : " The Opposition given to those
employed in the administration of public affairs, in the latter end
of Queen Anne's reign, and the struggles for power, which then sub-
sisted, did, in a great measure, take off the attention of the Ministry
from the concerns of America. From which cause the reports of the
Board of Trade were often silenced, and lay in the Secretary's Office,
without any notice taken of them. * Such persons as had any concerns
depending, in relation to America began to apply to the Council Board,
or to the Treasury or Admiralty, as the nature of the business might
require."
465] PROCEDURE IN REVIEW 47
The accession of George I and the triumph of the Whigs
in 1 714 resulted in a complete change of membership/ and
throughout the era of Walpole the efficiency of the Board
steadily declined, to continue at a low ebb for several years
under the government of Newcastle.* This state of affairs
was the result partly of the laxity of the secretary of state
and the Whig administration, and partly of a renewed and
increasing activity and influence upon the part of the com-
mittee of the Privy Council. In 1752 the colonial gover-
nors were directed to address their general correspondence
directly to the Board of Trade, instead of in duplicate, as
had been the custom previously, to the Board and to one of
the principal secretaries of state.* As a result of this
order the Board transacted more business and enjoyed for
several years a revival of its former prestige. At the be-
ginning of the next decade, however, its action had again-
become indecisive and dilatory, and it was further weak-
ened by the loss of its power to nominate colonial officers.*
By an order in council of August 8, 1766, the commission-
ers were directed to consider in the future only such matters
as were referred to them by the Privy Council or one of
the principal secretaries of state. At the same time the
governors were instructed to correspond with the secretary
* A''. Y. Col. Docs., vol. iii, Introd., p. xvi. In place of Meadows,
Monckton and Moore, who had been long active, Chetwynd, G)okc,
Docminique and Bladen became the leading spirits at the Board. Martin
Bladen was appointed July 13, 1717.
•"The Board of Trade during Sir Robert Walpolc's administration
had very faultily been suffered to lapse almost into a sinecure, and
during all that period the Duke of Newcastle had been Secretary of
State. It would not be credited what reams of papers, representations,
memorials, petitions from that quarter of the world lay mouldering and
unopened in his office." Memoirs of George II, vol. i, p. 396.
«B. T. J., vol. lix; 11 March, 1752. A. P. C, vol. iv, p. 156.
*B. T. J., vol. Ixviii, p. 265; 15 May 1761.
48 REVIEW OF COLONIAL LEGISLATION [466
of state, sending duplicates only to the Board. These
orders, which originated in the desire of Pitt to reduce the
evils of a divided responsibility in colonial administration,
deprived the Board of initiative and reduced it to a mere
advisory and consulting body/ Lord Hillsborough was
now commissioned as " Secretary of State for the Colo-
nies," and thereafter he and his successors sat as presidents
of the Board, directing its activities with no uncertain hand.
Many journal entries of this period begin with the state-
ment: "The Earl of Hillsborough laid before the Board,"
while the drafting of letters to the governors regarding
legislation was left almost entirely to his discretion. The
weakness of the Board is occasionally shown, also, by a
tendency to state the points for and against a law, without
itself making any definite recommendation for confirma-
tion or disallowance.^ Until finally abolished in 1782, its
initiative and vitality remained at a very low ebb.
The commission of the Board of Trade empowered it to
assume a general oversight over colonial legislation. Among
other duties, it was " to examine into and weigh such Acts
of the Assemblies ... as shall from time to time be trans-
mitted ; and to . . . represent . . . the Usefulness or mis-
chief thereof to our Crown, and to our Kingdom of Eng-
land, or to the Plantations themselves, in case the same
shall be established for Lawes there; and also to consider
what matters may be recommended as fitt to be passed in
the Assemblys there." ^ In other words, the Board might
^ B. T. I., vol. Ixxiii, pp. 299, 337. Fitzmaurice, Life of William,
Earl of Shelhurne, (London, 1876), vol. ii, pp. 1-3. Andrews, "British
Committees, Commissions and Councils of Trade and Plantations,"
/. H. U. Studies, vol. xxvi, pp. 113, 114.
'^ CO/5-1296, p. 363. A. P. C, vol. V, p. 163.
» N. Y. Col. Docs., vol. iv, p. 147 ; 6 July 1697. B. T. /., vol. xii, p. 74.
The Board's first commission issued May 15, 1696 was renewed from
time to time.
467] PROCEDURE IN REVIEW 49
examine, consider and make reports to the Privy Council,
but of real executive power it had very little. In important
matters its wishes were binding upon no one unless em-
bodied in an order of the Privy Council.
The Board, probably because of other duties, did not un-
dertake the examination of colonial laws until some months
after its formation. Among the books and papers be-
queathed to it by the former committee of trade and planta-
tions were certain acts of Massachusetts, together with an
opinion of the attorney general and the draft of a com-
mittee report upon them. These the Board examined at
several meetings in October, 1696. A report urging the
repeal of the two laws was signed on November 5, and on
the following day it was announced, apparently not with-
out satisfaction, that his majesty, at a council held the pre-
vious evening, had " entirely approved " their " represen-
tation " regarding the Massachusetts laws. Several days
later an engrossed copy of the order in council repealing
these acts was brought to the Board from the clerks of the
Privy Council. After having the order read, the Board
directed its secretary to deliver it to the agent for Massa-
chusetts and to obtain a receipt for it.^
The Board of Trade received laws sometimes by refer-
ence from the Privy Council, but usually by letter directly
from the governor.* Upon days allotted to the considera-
* B. T. /., vol. ix, pp. 191, 192, 206, 211, 242.
3 After 1735 the former course was followed in the case of laws of
Pennsylvania and Massachusetts, both of which colonies were compelled
by charter to submit their enactments to the Privy Council. All acts
passed during one session of a provincial assembly were, as a rule,
transmitted together, each separate law bearing an imprint of the
provincial seal in wax. After 1766 acts as well as other communica-
tions were sent by the colonies to the secretary of state, and by him
were brought or sent to the Board of Trade. B. T. /., vol. Ixxiv,
pp. 43, III.
50 REVIEW OF COLONIAL LEGISLATION [468.
tion of colonial legislation,^ the secretary presented to their
lordships acts lately received, noting the colony whence
they came and the date of their passage. At first the Board
was accustomed to read the laws at this time, laying aside
such as were found to be temporary or expired. But this
practice was soon discontinued, and upon their presentation
the secretary was at once authorized to send them to the
law officer.^
After being returned with a report " in point of law/'
acts were considered by the Board of Trade. Each in turn
appears to have been read aloud, probably by the secretary^
and to have been made the subject of discussion.^ Laws
fell naturally into three classes, those which were ( i ) tem-
porary or expired, those (2) unobjectionable, and (3) those
clearly objectionable or of doubtful expediency. If diffi-
cult or important questions were raised by the latter, their
consideration might be postponed and some future time set
for a hearing, to which the agent of the colony and persons
in a position to be well informed regarding the law, or in-
terested in its operation, would be summoned.
It sometimes happened that the attention of the Board
was first called to particular laws by petitions from persons
whose interests were effected thereby. The merchants trad-
^ The Board's programme varied from time to time. In 1717 it fixed
upon the following routine : " Monday's for reading letters and papers
from the Colonies, Tuesday and Wednesday for Plantation business,
Thursday for Trade, and Friday for Colonial legislation." B. T. J.,
vol. xxvi, p. 438.
2 By this term was meant the attorney or solicitor general, or, after
1718, the king's counsel. Subsequent to 1755 presentation by the Sec-
retary became so much a matter of formality that he often referred'
acts to the law officer at once, notifying the Board of his action at their
next meeting. B. T. /., vol. Ixix, p. 218.
' There is no authoritative statement of the exact course pursued by the
Board in considering laws. The above inferences are drawn from the-
wording of the journal entries.
469] PROCEDURE IN REVIEW 5 1
ing to the colonies and the Quakers were particularly active
in this respect. Such petitions were addressed not to the
Board but to his majesty in council, and were referred to
the former by an order in council. In 171 7 the Board re-
fused to receive a petition presented by the memorialist and
addressed to itself. But memorials frequently were brought
to the Board and presented in person when the matter at
issue was already in due course under consideration there.*
If the petitioners were adverse to the confirmation of the
law, the agent usually presented a memorial in reply. At
first the contestants seem to have relied mainly upon writ-
ten briefs for the presentation of their cases, attending the
Board to furnish additional information when desired. But
hearings gradually became more formal and elaborate, each
side being represented not only by an agent, but also by a
solicitor. Thus, to cite one example among many, when
in 1725 the Board considered several acts of New York
regarding the Indian trade, the hearings extended over sev-
eral days and the agent for the province and a solicitor for
the merchants each addressed their lordships at consider-
able length. The Board also examined under oath ' two
fur-cutters of London and a late inhabitant of the province,
and consulted an ex-governor.' When the proprietors of
Pennsylvania complained of several acts passed by the
* B. T. I., vol. xxvi, pp. 196, 284. Petitions were sometimes made
while the law in question was yet with the law officer, or even before it
had been received from the colony. In such cases petitioners were
assured that they would be notified in ample time for the presentation of
their case when the act came before the Board in the usual course.
A more speedy consideration of the matter usually resulted, although
the Board was reluctant to take up acts out of their usual order with-
out good reason. B. T. /., vol. x, p. 352,
*The solicitor general rendered an opinion in 1720 that the commis-
sion of the Board of Trade impowered it to administer an oath upon
examination. B. T. /., vol. xxix, p. 82.
* B. T. /., vol. xxxiv, pp. 1 10- 1 14, 12^-155.
52 REVIEW OF COLONIAL LEGISLATION [470
assembly, in 1760, they were represented by the attorney
and solicitor general; while for the colony appeared two
agents, one of whom was Benjamin Franklin, and two
solicitors/ The procedure observed at the Board upon
these occcLsions seems to have been informal. Usually the
petitioners against a law opened the discussion and its de-
fenders replied. Sometimes the speakers were heard in
rebuttal. Each side was afforded ample opportunity to
present its case. Indeed, postponements for the convenience
of one or more of the parties interested were so common
as to constitute the rule rather than the exception.
At the conclusion of a formal hearing, the non-members
withdrew and the Board arrived at a decision on the ques-
tions at issue. From minutes taken down during the dis-
cussion the secretary composed the draft of a report or
■" representation," which he submitted to the Board at a
subsequent meeting.^ After having been considered and,
^ B.T J., vol. Ixvii, pp. 136-138. At a hearing upon a North Carolina
act in 1751 the defenders of the law included both a solicitor and a
counsel. The latter refused to plead when it appeared that his op-
ponents were represented by a solicitor only; and they agreed to pro-
cure counsel. B. T. J., vol. Iviii, pp. 43, 44.
That Board " hearings " were regarded somewhat in the nature of a
trial at law is shown by an order in council of November 30, 1738. This
directed that no appeal to the Council against reports of the Board
upon hearings of parties upon plantation afifairs should be admitted
•without security to pay cost. B. T. I., vol. xlvii, pt. ii, p. 59- A. P. C,
vol. iv, p. 440.
*"At first there seems to have been a distinction between a report
and a representation. The latter was the more formal paper addressed
to the King in Council, while a report was less formal and was ad-
dressed to the committee of the Council. As time went on and the
Committee came to act in place of the Council, the words were used
more or less interchangeably. Thus on June 29, 1731, the Board signed
what in the text is called a representation, but in the margin, a report.
B. T. I., vol. xU, 169. Communications to the Secretary of State were
usually called letters." Clarke, "The Board of Trade at Work," Am.
Hist. Rv., vol. xvii, p. 36, note 130.
471 ] PROCEDURE IN REVIEW 53
perhaps with minor alterations, " agreed to," this was re-
copied or "transcribed fair" by one of the clerks and signed
by the members who chanced to be present on the following
day,^ although if there were need of haste, representations
were sometimes written, agreed to and signed at a single
meeting. The great majority of Board reports covered acts
passed at a single session of a colonial assembly. But they
were made, as well, upon single acts, upon collections of
laws, and in a few instances upon those of several different
colonies. After mentioning such laws as were temporary,
expired, or without objection, the representation called
attention to those which were objectionable, usually quoting
at length from the opinion of the law officer, and conclud-
ing with a definite recommendation that they be disallowed,
or perhaps that they be permitted to remain in operation
notwithstanding their defects.
In course of time two important changes occurred in the
customary procedure of review: (i) In 1718 a special offi-
cer known as the " King's Counsel " was designated to
pass upon the legality of colonial legislation, and thence-
forth, in the usual course, acts were referred to him instead
of the attorney or solicitor general. (2) Early in the cen-
tury the Privy Council gradually relinquished its discretion
in confinning the recommendations of the Board of Trade,
to a committee of its own members, and the Board, in con-
sequence, addressed the majority of its reports to that body.^
After 1720, therefore, laws received by the Board of Trade*
' See, for example, the progress of a New York act at the Board in
1719; B. T. /., vol. xxviii, pp. 244, 247, 249, 253. Or of a North Carolina
act in 1761 ; B. T. I., vol. Ixviii, pp. 378, 379, 381, 395, 412.
* As a matter of formality, however, practically all reports of the
Board, whether addressed to the Council or the committee, appear to
have been delivered to the Council and by it referred to the committee.
'Laws received, as was often the case, by the Privy Council in the
first instance, were referred by order in council to the committee and
by the committee to the Board.
54 REVIEW OF COLONIAL LEGISLATION [472
were referred at once to the king's counsel. The Board,
after considering the acts, together with the law report
upon them, reported to the committee, and the latter, in
turn, to the Privy Council, which confirmed the recommen-
dations of the committee by an order in council.
Having signed the representation upon a law, the Board
had no further part in its review ^ until a copy of the order
in council for its confirmation or disallowance was received
from the Privy Council office.^ It then informed the gov-
ernor, or the colonial agent, of the action taken, and the
reasons for it. A copy of the order in council, and usually
of the representation or of the law report as well, were en-
closed.
Not more than one-fourth of the laws considered at the
Board of Trade were recommended for confirmation or
disallowance. A few had been repealed by the assemblies,
and many had expired of their own limitation before action
upon them could be taken by the government. But the
majority were either neglected or suffered to " lye by pro-
^Two exceptions may be made to this statement, (i) If, after the
Board had made its report, a new petitioner, whose case had not been
heard, appeared before the committee of the Council, or if some
question arose upon which additional information was desired, the
whole matter might be re-referred to the Board for reconsideration.
This occurred, for example, in the case of several Massachusetts acts
for erecting townships. A. P. C, vol. v, p. 33. And (2) the com-
mittee sometimes summoned the Board to its own office for a joint
meeting. Cf. infra, p. 84, note 2.
^ Soon after the formation of the Board one of the clerks was in-
structed to call at the Council from time to time for their determination
upon colonial laws. C. S. P., i6g6-7, p. 215. But this plan seems to
have proved unsatisfactory, for in 1697 the secretary of the Board made
arrangements with the clerks of the Council for the transmission to
the Board of such orders as concerned trade and plantations. B. T. J.,
vol. X, p. 125. In 1724 the Board requested the president of the Council
to give directions that orders for the confirmation or repeal of acts be
sent to their office. B. T. J., vol. xxxiii, p. 135.
473] PROCEDURE IN REVIEW 55
bationary." The latter course was sometimes taken as a
means of eliminating certain objectionable features from
an otherwise beneficial law, the act being allowed to stand
provisionally while the governor either was instructed to
procure an amendment remedying its defects, or to obtain
the repeal of the old law and the enactment of a new. This
was especially true of acts involving the collection or pay-
ment of money, the provisions of which had been at least
partially fulfilled before action upon them could be taken
by the Board of Trade. A Massachusetts act of 1764, for
example, the Board found objectionable " in no other re-
spect . . . than as it directs a double Impost . . . for all
goods . . . imported by inhabitants of other Colonies."
They accordingly proposed "an instruction to the Governor
for procuring the amendment of this particular clause." *
In some cases it was stated that, if the request for an amend-
ment were not complied with, the act would be immediately
disallowed ; * and that a Pennsylvania law might remain
unrepealed, the agents signed a written agreement that a
desired alteration would be made."
In other cases the period of probation was temporary
pending the receipt of further information from the colony.
After considering a petition of the merchants against an
Indian trade act of New York, for example, the Board
*' being doubtful of the facts alleged and considering how
far the British trade may be affected, . . . and how much
the security and interest of Your Majesty's Colonies . . .
May be concerned," advised that no direction be given on
the subject until the governor had been acquainted with
' Goodell, Acts and Resolves, vol. iv, p. 698. A. P. C, vol. iii, p. 553;
South Carolina, 1737. A. P. C, vol. iv, p. 416; North Carolina, 1759.
' CO/5-401, p. 146. N. Y. Col. Docs., vol. vi, p. 33. Board Represen-
tation to the House of Lords, 1734, in the British Museum. 8223. i. 5.
* A. P. C, vol. iv, p. 442; 2 September 1759.
56 REVIEW OF COLONIAL LEGISLATION [474
the objections of the merchants, and had made answer.*
Again, probation amounted merely to a brief delay in con-
firmation to insure ample time for the presentation of peti-
tions against legislation. For this purpose it became the
settled policy of the Board to hold probationary for several
months all " private acts " or laws conferring special rights
or privileges upon individuals or small groups of persons.
Public acts affecting in an unusual manner or special fashion
the rights or property of private individuals might also be
laid by. Thus, in reporting upon a New Jersey law for
running a boundary between East and West Jersey, the
committee said : "This is an act wherein private Property
is concerned. The Lords Commissioners have lett the same
lye by for some time, that in case any Person should have
been aggrieved thereby, they might have Sufficient opper-
tunity to lay their objections before them. . . . As it is
now about ten years since the act was passed, and it w^ill
be of advantage to the inhabitants," it may be confirmed.^
In the great majority of cases, however, acts were laid
by indefinitely as a precaution to safeguard the rights of
private individuals or the interests of the crown. Inasmuch
as the government conceded that laws once confirmed could
never thereafter be disallowed,^ the advantage of the prac-
tice is obvious. Acts which presumably embodied local
sentiment could remain in force, while the crown, never-
^ A'', y. Col. Docs., vol. V, p. 709; 14 July 1724.
'A. P. C, vol. iii, p. 222.
3 In 1703 Attorney General Northey delivered an opinion to the effect
that a law " having been approved absolutely and not for any time or
with any reservation to the Crown to repeal it, will be in force till the
same be repealed by another act of the General Assembly of the Colony.
* the passing of an act there with the absolute confirmation of Her
Majesty having the force of an act of Parliament made in England."
CO/5-323, F, 14. Board of Trade to Hunter, CO/5-995, P- 227; 22.
March 1716. A. P. C, vol. iv, p. 144.
475] PROCEDURE IN REVIEW 57
theless, remained uncommitted and free to repeal them at
any time if unexpected objections arose. As to such laws
as are not directly repugnant to the laws or interests of
Great Britain, against which no complaint is made, and
where the Board are doubtful of the effect they may have,
says a report of that body, " it has always been usual to
let them lye by probationary, being still under the power
of the Crown to be repealed, in case any inconvenience
may arise from them." ^ Either from neglect or design,
fully one-half of the laws passed between 1690 and 1699
were allowed to remain in force without formal confirma-
tion or disallowance. Of those enacted between 1700 and
1 710, about three- fourths, and of those passed during the
decade following, about ninety per cent were unaffected by
orders in council.^ Despite the growing tendency to dis-
I)ense with a definite decision, however, the phrase " to lye
by probationary" did not come into use until about 1718.*
' Representation to the House of Lords, in the British Museum, 23
January 1734.
'The approximate percentages of acts submitted which were confirmed
or disallowed by orders in council are as follows : of laws enacted be-
tween 1690 and 1699, 48%, thereafter by decades, 26%, 10%, 5J^%, 18%,
20%, 19%, 9%, Between 1770 and 1775, 6%. The increased percent-
ages between 1730 and 1760 are due to the confirmation of a large
number of Massachusetts laws, and have, therefore, no great signi-
ficance. By colonies the percentages of acts confirmed or disallowed
are: South Carolina 6%, New Jersey 7%, New York 81/2%, North
Carolina 9J^%, Georgia 11%, New Hampshire 11%, Virginia 18%,
Massachusetts 25%, and Pennsylvania 29%. The laws of Massachu-
setts and Pennsylvania were subject to rather closer scrutiny than those
of other colonies because of the charter provisions by virtue of which
they were confirmed by lapse of time unless disallowed within a stated
period. Moreover their early attempts to base legislation upon the
word of God resulted in the annulment of many laws during the first
two decades of review. Thereafter the proportion of their acts dis-
allowed was not appreciably larger than that of other colonies.
* In 1708 the Board made inquiries of Lovelace regarding a New
Jersey act of 1704 for "iRegulating Elections," ordering that "in the
58 REVIEW OF COLONIAL LEGISLATION [476
It first appeared, and continued to be most often employed,
in connection with the laws of Massachusetts, probably be-
cause their probation meant no more than the postponing
of confirmation until three years after presentation, when
acts not disallowed were placed beyond the reach of the
crown by the terms of the provincial charter. The practice
continued in frequent use at the Board of Trade, and be-
came very ccmmon after 1760, when many laws which ap-
peared unob jectionable were ordered collectively " to lye
by till their i urther effect may be known."
As an advisory council upon colonial affairs, the Board of
Trade served not only the Privy Council and the secretary
of state, but also Parliament. Upon receiving an order
from either house for laws or documents relating to the
colonies, the Board, by one of its members, would dispatch
copies.^ For several years it rendered annual reports to
the house of Commons regarding " the Laws, Manufac-
tures, and Trade of the Plantations." These made brief
mention of such laws only as concerned trade, shipping or
manufactures. Apparently they were put to no very im-
portant use, and after a time the custom was allowed to
lapse.^ In 1740 the Board reported to both houses regard-
meantime the act remain in force, without being confirmed." N. Y.
Col. Docs., vol. V, p. 46. In May 1710 it agreed to let a Massachusetts
act of 1705 " remain as Probationary for some time longer." B. T. J.,
vol. xxi, p. 454. With a few exceptions all the Massachusetts laws
passed between 1706 and 1714 were confirmed by lapse of time. Acts
and Resolves, vol. i, p. 616, note. In 1716 a New York law was " left
probationary" until the governor should be heard from; while in 1718
two acts of Barbadoes, two of New Hampshire, and nine of Massa-
chusetts were ordered to "lye by." CO/s-1123, p. 431. Acts and Re-
solves, vol. ii, p. 31. B. T. J., vol. xxvii, pp. 166, 310. The phrase ap-
pears commonly thereafter.
1 B. T. J., vol. xl, pp. 84, 91. B. T. /., vol. xli, pp. 54, 56, 92. B. T. /.,
vol. Ixxxi, p. 44.
^ B. T. /., vol. xli, pp. 36, 37, 38, 40.
477] PROCEDURE IN REVIEW ^g
ing the state of the paper money in the various plantations,
and upon request it drafted an act of Parliament for "Rais-
ing a Revenue" in New York/ Official communications
from the Board to Parliament, however, had as their object
either the transmission of desired documents, or the com-
munication of information regarding the colonies in general.
Unlike representations to the committee or the Council, they
did not contain definite recommendations that any partic-
ular course of action be pursued.
Turning from the Board of Trade itself, we shall con-
sider briefly the various sources of counsel and information
available to it in forming opinions and recommendations
upon colonial laws. Legislation upon matters under the
jurisdiction of the treasury or the admiralty was referred
to one or the other of these departments ; while laws affect-
ing the interests of the Anglican Church were sent to the
Bishop of London. And careful attention was accorded
alike to the complaints and representations of the merchants,
to the arguments of colonial agents, and to the recommen-
dations of the governors. But none of these exercised upon
the deliberations and policy of the Board so constant and
persuasive an influence as did the opinions delivered by the
legal advisers for the crown, the attorney and solicitor gen-
erals, and later by the king's counsel.
The commission of the Board of Trade empowered it to
"desire the advice of the Attorney and Solicitor General
or other Counsel at Law," ' and of the privilege the Board,
like its predecessor the committee, continually availed itself.
References were commonly made for one of two purp>oses :
either to obtain an expert opinion as to the general fitness
of legislation " in point of law," or to secure advice upon
* B. T. /., vol. xlviii, pp. 3, 23. B. T. I., vol. xxii, pp. 255, 257, 264.
' B. T. I., vol. xii, p. 74 ; 19 June 1699.
6o REVIEW OF COLONIAL LEGISLATION [478
definite legal problems arising out of the consideration of
acts.
For the former purpose the services of the attorney and
solicitor proved, upon the whole, unsatisfactory. From the
first the procrastination and delay with which they rendered
their reports were a cause of annoyance and of serious in-
convenience to the Board of Trade. In spite of repeated
solicitations, several acts of Massachusetts, referred in Sep-
tember, 1696, were not returned until June, 1698.^ In
June, 1699, the Board was still without a desired opinion
upon Pennsylvania laws which had been with the attorney
and solicitor general eighteen months; and notwithstand-
ing a request for a " speedy report," acts of Virginia re-
ferred in May, 1703, remained in the law office four years.^
Occasionally the attorney and solicitor acted with com-
mendable promptness.* But in the majority of cases they
did not do so, and much needless uncertainty and delay re-
^ These acts were among " all laws of the Plantations now before
this Board " which were ordered to the attorney and solicitor on Sep-
tember 5, 1696. B. T. J., vol. ix, p. 92. On December nth the Board
ordered its secretary to desire of the attorney his report upon " Laws
already in his hands, as soon as he can." B. T. J., vol. ix, p. 277.
And again on April 8, 1697 the Board requested a " dispatch of the
acts of the Assemblies (but most especially those of Massachusetts
Bay) which lye in your hands. It being for His Majesty's service
that they be dispatched." CO/5-1287, p. 64. Later they asked the
agent of Massachusetts to look into the matter, " as it is not right these
acts should be kept so long in suspense." CO/5-907, p. 372; 3 May
1698. He did so, and reported that they had been mislaid, but were
now " found by Mr. Attorney." B. T. /., vol. xi, pp. 43, 54, 68.
CO/5-908, p. 4. Other acts referred at the same time were reported on
in January 1698, after having been with the law officers a year and
a half.
2 C. S. P., 1699, p. 140. B. T. /., vol. xi, p. 438. B. T. I., vol. xvii,
pp. 36, 37-
' Some forty acts of New Hampshire, for example, sent to the
attorney general on July 22, 1703 were considered together with his
report on August 13.
479] PROCEDURE IN REVIEW 6i
suited. Judging from their spasmodic manner of examin-
ing the colonial laws, they regarded the task as an unlucra-
tive addition to more important duties. In excusing the
failure of the attorney to dispatch plantation laws, the agent
for Virginia mentions " some difficulties in relation to his
fees," while the attorney himself urges the fact that not
one of the agents have attended him.^ While the agents, no
doubt, gave necessary information regarding the purpose of
legislation, their influence in securing law reports was due
in part to a judicious distribution of fees — the lack of
which caused much of the delay at the law offices.
Moreover, the fact that the examination of laws was en-
trusted to two officials of equal authority resulted in divided
responsibility and consequent confusion. The first acts re-
ferred by the Board of Trade were sent " to the Attorney
and Solicitor General for their advice thereon." ' Several
months having passed without a report, the Board, in order
to expedite matters, requested the attorney to give his
opinion upon the acts already in his hands, at the same
time directing that such laws as had been lately received be
sent to the solicitor.' In July, 1697, the Board ordered its
secretary to urge the dispatch of laws already referred, as
a matter of gjeat importance to his majesty's service.
"And that hereafter in sending any such acts to them, he
direct them to the said Attorney and Solicitor General, or
either of them ; And send the Packets, as they shall happen
to consist of many or few, with that Direction, alternately
first to the one and then to the other." * This arrangement
failing to secure the desired promptness and regularity, the
» B. T. /., vol. xvii, p. 37- CO/s-1360, p. 470; 11 May 1704. CO/s-323,
F, 18; 19 October 1703.
2 B. T. I., vol. ix, p. 92 ; 5 September 1696.
' 5. T. /., vol. ix, pp. 277, 278; II December 1696.
*B. T. /., vol. X, p. 156; 8 July 1697.
62 REVIEW OF COLONIAL LEGISLATION [480
Board suggested that the secretary propose to them, " if
they saw fit, to agree between themselves about the acts of
what particular Plantation they will each of them hence-
forwards take care." ^ But this plan, if adopted at all, did
not remain long in operation, for acts of each colony were
sent now to the solicitor and now to the attorney. No gen-
eral rule was followed, apparently, although in the long run
the number of references to each was about equal.
For a time the Board sent practically all the acts received
to the attorney or the solicitor; but after 1700 the propor-
tion referred begins to show a marked decline, the tendency
being to dispatch only those of more questionable expedi-
ency or of unusual importance, until gradually the Board
gave up attempting to exact from the attorney and solicitor
a general examination of colonial legislation, contenting
itself with an occasional reference of isolated acts. Such
a course was in harmony with the growing practice of
allowing unobjectionable acts " to lye by," and was, no
doubt, partly the result of the general laxity of adminis-
tration then setting in. On the other hand, the regularity
of the references made to the king's counsel a few years
later, and the importance attached to his reports, would in-
dicate that the fault at this time lay not so much in the
failure of the Board to refer, as in that of the attorney and
solicitor to report.^ Despite the increasing volume of legis-
^ B. T. J., vol. xi, p. 278; 8 November 1698.
^ All Massachusetts laws enacted between 1696 and 1706 were re-
ferred; while those passed between 1706 and 1716 were allowed to lye
by. Only about one-half of the New York laws passed between 1696
and 1714 went to the attorney and solicitor, though all enacted pre-
vious to 1700 were referred. The laws of New Hampshire enacted
prior to 1704 were sent to the attorney or solicitor, but none thereafter.
The last acts of each colony to be referred collectively were passed
by New York in 1701, New Hampshire in 1703, Massachusetts in 1706,
Virginia in 1710, and Pennsylvania in 1712. No laws of New Jersey
were so referred. After 1718 acts were allowed to lye by, as a rule,
only after having been approved by the king's counsel.
48 1 ] PROCEDURE IN REVIEW 63
lation, the process of review was almost at a halt, when in
April, 1718, a special attorney known as the " King's Coun-
sel " was designated to act as legal adviser to the Board ;
and upon him were conferred the burden and routine of
reporting as to the fitness of colonial acts " in point of law."
The attorney and solicitor, however, continued to advise
the Board, upon request, regarding acts of unusual impor-
tance and legal questions of unusual difficulty.^
In many instances prior to the appointment of a king's
counsel, and in a great majority of instances thereafter, the
Board, in referring acts to the attorney and solicitor, re-
quested not merely an opinion " in point of law," but a
reply to one or more definite questions. The point most
frequently raised in this manner was the legality, or what
might now be termed the constitutionality of legislation.
Had the colonial legislature exceeded its power and author-
ity in passing the law? Were its provisions unwarranted
under the terms of the provincial charter, or in conflict
with an act of Parliament? The Board inquired, for ex-
ample, whether two acts of North Carolina were " proper
consistently with the just rights of the inhabitants and the
Constitution of said Province." ' And three private acts
granting decrees of divorce, they referred to the attorney
and solicitor upon " a matter of doubt whether the legis-
* In 1770 Jackson, the King's Counsel, recommended that a Pennsyl-
vania act be sent to the attorney and solicitor " inasmuch as the exer-
cise of this power [the granting of divorce] may frequently effect
other parts of His Majesty's Dominions out of the limits of the Pro-
vince, and very important consequences may therefore be drawn from
the allowance of such an act." CO/5-1278, Z, 1.
It is perhaps worthy of note that whereas, prior to 1718, references
had been made, as a rule, either to the attorney or the solicitor a great
majority of those thereafter were made neither to the one nor the
other, but to both; while the majority of their reports which formerly
had been signed separately were after this time rendered jointly.
• CO/5-323, p. 353; 30 April 1750.
64 REVIEW OF COLONIAL LEGISLATION [482
lature of the Province of Massachusetts Bay or any other
Colony has a power of passing Laws of this nature, and
consequently whether these acts are not of themselves null
and void." ^ And, to give one example among many, a
naturalization law of New Jersey was sent to the solicitor
with an inquiry as to how far it was "consistent with the
act of Parliament of 12 Charles II, . . , or other acts of
Parliament."^ Many queries had to do with the interpre-
tion of some puzzling or obscure provision of a colonial
law.^ The Board also passed on to them several questions
propounded by the governor of Rhode Island regarding his
powers under the provincial charter; and they inquired
whether certain acts of Parliament extended to the planta-
tions, and whether the charter of Pennsylvania entitled
both Penn and his lieutenant governor to exercise a veto
upon laws passed there.* Other questions were of a more
general nature. The attorney and solicitor were requested,
for example, to report upon the granting of letters of deni-
zenship by the governors, and by what authority it was
done.^ Also, whether the crown might not settle rates of
coin in the plantations by proclamation ; whether foreigners
naturalized by the assemblies gained thereby all the privi-
^ CO/5-918, p. 490; 6 June 1758. CO/5-920, p. 209; 13 March 1767.
B. T. J., vol. xix, pp. 84, 85 ; 27 February 1701.
*CO/s-995, p. 450; 10 December 1718.
' Question as to the effect of an act suspending the operation of a
former law. CO/5-726, pp. 345, 348; Maryland, 5 December 1705. In-
quiry regarding a Massachusetts tax act : " Whether the Commissioners
and other Officers of the Customs are liable to be taxed * for their
salaries paid out of money not granted to the Crown by the General
Court." CO/5-920, p. 276; 9 February 1770.
* CO/5-1294, p. 57; 5 September 1732. B. T. /., vol. Ixxix, p. 176;
5 June 1767. B. T. I., vol. xviii, p. 52; 9 October 1705.
^ CO/5-714, p. 348; 3 November 1698. This request came from the
Privy Council.
483] PROCEDURE IN REVIEW 55
leges of persons naturalized by the act of Parliament in
Great Britain; and by what authority the colonies claimed
the power to make temporary laws.^
In addition to their examination of laws, the attorney
and solicitor considered the tentative drafts of acts, or
" bills," which governors sometimes presented to the Board
with a request for permission to give their assent. When
requested to do so by the Board they drafted amendments
to such bills ; and in a few cases they " prepared the heads "
of a law which the Board wished to have passed by an
assembly.^ After 1718 they rarely attended at the Board,
and when they did so it was usually to act as counsel for
one of the parties to a hearing. In March, 1738, the Board
" had discourse " with both regarding quit-rents in North
Carolina,' The solicitor attended and spoke at length as
counsel for the petitioner against a New York act " Mak-
ing void a fraudulent Conveyance to William Davenport " ;
and in 1760 both acted for the proprietors of Pennsylvania
at a hearing upon several laws.*
In April, 17 18, Richard West was designated as " King's
Counsel " with a yearly salary of three hundred pounds.
He was commissioned to attend to such " Law Business
regarding Trade and Plantations as the Board should not
conceive of that importance to require the opinion of the
^ B. T. /., vol. xvi, p. 142; I June 1703. B. T. /., vol. xlv, p. 29;
2 March 1736. Chalmers, Opinions, pp. 338, 339; 22 July 1714.
»C. 5. P., 1693-6, p. 647. CO/5-1360, p. 469. B. T. /., vol. xxvii,
p. 118. B. T. /., vol. xli, p. 191. B. T. /., vol. Ixv, (unpaged) ; Jamaica,
5 July 1758.
' B. T. /., vol. xlvii, p. 29.
* B. T. J., vol. xlvii, p. 52 ; 3 April 1734. B. T. I., vol. xlvii, p. 148.
CO/S-129S, p. 297; 24 June 1760. One of the two appeared for Carolina
against an act of Georgia for regulating the Indian trade. CO/5-366,
F, 59.
66 REVIEW OF COLONIAL LEGISLATION [484
Attorney and Solicitor General.'" West held the office
until he was appointed chancellor for Ireland in June, 1725.
His successor was Francis Fane, who retired in 1746 and
subsequently became a member of the Board of Trade.
He was succeeded by Sir Matthew Lamb, an exceedingly
able man, who held the position for over twenty years.
After a short intermission, during which the post was
vacant, Richard Jackson was appointed. He served until
after 1776.
In obedience to a summons from the Board, West at-
tended for the first time on May 7, 1718. After consider-
ing several acts of Antigua, they desired him to put his
observations upon them, or any other acts of the planta-
tions, in writing, and he agreed to do so from time to time
accordingly.^ For a time West attended all meetings of the
Board at which acts were considered. He appears to have
rendered oral advice while they were under consideration
and to have submitted a written report at a subsequent meet-
ing upon those which involved questions of special difficulty
or importance.^ Gradually, however, West's attendance be-
came less frequent, and in the course of a year or two the
Board had returned to the procedure formerly observed in
referring laws to the attorney and solicitor general. In
other words, they sent all acts to the counsel and deferred
the consideration of them until returned with a written re-
1 Qialmers, Opinions, pp. 9, 10. B. T. I., vol. xxvii, pp. 206, 213.
^ B. T. J., vol. xxvii, p. 231 ; 7 May 1718. He was given "Liberty at
any time to peruse such papers in this Office as relate to any of these
acts of Plantations, * * or which concern the Trade of this Kingdom."
B. T. /., vol. xxvii, p. 222; 2 May 1718.
^A New York act, after being considered with the king's counsel
attending was " referred to Mr. West for his opinion in writing
thereon." B. T. /., vol. xxviii, p. 129, 140; February 1719. Others
were sent to him, " for his particular consideration and report."
B. T. J., vol. xxviii, p. 218.
485] PROCEDURE IN REVIEW 67
port. The king's counsel continued, nevertheless, to attend
meetings of the Board whenever he was requested to do so.*.
Law reports, whether submitted by the attorney and solic-
itor general or by the king's counsel, often consisted of the
simple statement that certain acts, having been examined,
appeared unobjectionable " in point of law." Or the law
officer began by stating that certain acts were temporary
and had expired, and that others were liable to no objec-
tion. The remainder he listed separately, with comments
following the title of each. After a short discussion of an
act there followed, as a rule, a definite recommendation
that it be confirmed, or, in spite of objectionable features,
allowed to lie by, or that it be disallowed. Criticisms were
based primarily upon grounds of legality, although general
considerations of policy and expediency were discussed as
well. In the latter case, however, the law officer was more
restrained in making definite recommendations as to the
course which, in his judgment, should be pursued.
From the first, it was usual for the agents or for repre-
sentatives of persons interested in particular laws to solicit
from the law officers the consideration of and report upon
legislation. They appear to have explained the purpose of
laws by stating the special circumstances which led to their
enactment, to have advanced arguments for or against their
confirmation, and to have expedited matters by the payment
* The Board sometimes propounded queries to the counsel as well as
to the attorney and solicitor. They were, however, comparatively few
in number, and generally had to do with matters of lesser scope and
significance. The Board asked, for example, whether the Pennsylvania
charter permitted the re-enactment of laws disallowed in England;
whether a clause of a law repealed by a temporary law revived upon the
expiration of the repealing act; and whether under an act of Parliament
colonial privateers were entitled to bounties. B. T. /., vol. xxviii,
p. 167. CO/s-873, p. S07. B. T. J., vol. li, p. 129.
68 REVIEW OF COLONIAL LEGISLATION [486
of fees/ In rare instances they employed counsel and a
preliminary hearing was held. There is no record of the
proceedings. But apparently the arguments were concerned
both with matters of law and of policy, and were, there-
fore, scarcely more technical or less broad in scope than
those advanced at hearings before the Board of Trade. ^
The content of the law report usually determined the
trend of discussion upon an act at the Board of Trade, and
not uncommonly, apart from any other consideration, de-
termined its fate. In no instance was a recommendation
of the attorney or solicitor general as to the confirmation
or disallowance of an act rejected; although laws were
sometimes re-referred for additional information or fur-
ther elaboration of points previously made.^ Advice given
by the king's counsel was sometimes, though not often, dis-
regarded.* Even after the appointment of a king's counsel,
^ A representative of the commissioners of the customs appeared be-
fore the solicitor against a Massachusetts act " Prohibiting the Exporta-
tion of Money." C. 5". P., 1700, p. 475; 9 August 1700. The report
of the solicitor upon a New York law "Vacating Several extravagant
Grants of Lands" contains a statement of the arguments advanced to
him both for and against the law by parties interested. CO/5-1044,
p. 132; 27 June 1700. Also regarding an act of Jamaica see B. T. J.,
vol. xvi, p. 20s; 9 September 1703.
^ The report upon two laws of North Carolina stated that the officer
had "taken the same into consideration and heard Counsel for and
against the said acts." CO/5-296, C, i ; i December 1750. In 1737 the
Georgia trustees entered a caveat with the attorney general that no
report be made upon some queries of the Board regarding an Indian
trade act until they had been given an opportunity to be heard by their
counsel before him. CO/5-366, F, 59; 29 June 1737- Fane was attended
by a solicitor for the merchants, who argued against the confirmation of
a New Jersey impost act that great detriment would arise to the trade
of the kingdom from a clause laying a duty on copper ore exported.
CO/5-973, F, 9.
^ CO/5-1361, p. I ; 15 August 1740.
* CO/5-1296, p. 2)62,; Pennsylvania, 20 July 1770. A. P. C, vol. v,
p. 282; New Hampshire, 9 December 1770.
487] PROCEDURE IN REVIEW 6g
the Board did not invariably secure a law report upon acts
which it considered. An important bankruptcy law of
Massachusetts was disallowed without a reference to Lamb,
because he was absent from the city, and a quick disposal
of it was deemed advisable.^ An act of New York, " De-
claring certain Persons incapable of being Members of the
Assembly," appears to have escaped legal examination be-
cause the law was so flagrantly bad as to render it super-
fluous.'' After 1 7 18, however, such cases constituted the
rare exception and not the rule. Upon the other hand, in
adopting a recommendation of the law officer, the Board
nearly always incorporated parts of his opinion in its rep-
resentation. And copies of his report were often sent to
the governors as a guide in enacting future legislation.*
The influence of the Board's legal advisers upon its policy
in legislative review can scarcely be over-emphasized. The
king's counsels, holding office as they did for comparatively-
long j)eriods, and reviewing practically the entire volume of
colonial legislation, were veritable watch-dogs of legality.
Their practised eyes were quick alike to note undue en-
croachments upon the domain of individual liberty, unwar-
ranted violations of the security of private property and
unseemly infringements upon the prerogatives of the crown^
They strove, not always successfully, but certainly not with-
out effect, to keep the enactments of the assemblies within
a fair degree of conformity to the acts of Parliament and
the common law.
For advice regarding the confirmation or disallowance of
legislation which in any way affected the revenues of the
crown, the Board of Trade turned to the lords of the treas-
» B. T. J., vol. Ixv, unpaged ; 21 June 1758.
' B. T. /., vol. Ixxvii, pp. 83, 92; 4 April 1770.
' B. T. J., vol. xxvii, p. 92; 28 January 1718.
yo REVIEW OF COLONIAL LEGISLATION [488
iury and the commissioners of the customs. From the latter
Jl>ody they requested an opinion upon many laws imposing
restrictions upon trade or navigation. Among these were
acts levying customs duties and prescribing the manner of
their collection by establishing ports of entry or fixing col-
lectors' fees. Laws regulating the production or the ex-
portation of commodities, such as hides and tobacco, or
levying imposts upon goods imported from Great Britain,
or tending in any way to diminish the volume of trade be-
tween the mother country and the colonies, and consequently
to impair the crown revenue, were also referred to them
from time to time. ^
Until 171 5 the Board, as a matter of formality, sent these
acts to the secretary of the lords of the treasury with a re-
quest that they " move the Lord High Treasurer that the
Board may have the opinion of the Commissioners of the
Customs." And in due time the report of the commission-
ers was returned through the same channel. Subsequently,
however, the Board addressed letters to the secretary of the
commissioners of the customs, and communications, as a
rule, passed directly between the two bodies.^
* Among the acts referred were laws of Massachusetts, " To Restrain
■the Exportation of Raw Hides," " Establishing Sea Ports," " Establish-
ing a Naval Office," "Ascertaining Fees," and "Rates and Duties of
Tonnage," Acts and Resolves, vol. i, pp. 153, ZZ^, 364- B. T. J., vol.
xvi, p. 45. CO/S-260, p. 261. They examined laws of Virginia for
" Preventing Frauds in the Customs," " Establishing Ports," and several
acts for " Improving the Staple of Tobacco." B. T. /., vol. xiii, p. 14.
B. T. /., vol. xix, p. 157. CO/5-1322, R, 135. 0:0/5-1366, p. 532.
Various acts from Maryland, Carolina and the Island colonies were re-
ferred as well. CO/5-1273, V, no. CO/S-403, P- 9- B. T. J., vol.
Ixvi, p. 22.
* There were two variations from this procedure. In 1752 two acts
of Virginia "Amending the Staple of Tobacco " and " Preventing
Frauds in the Customs " were sent, together with an act for " Settling
the Titles and Bounds of Lands " to the lords of the treasury. CO/5-
^3^6, p. 531- Action in this case may have been determined by the fact
489] PROCEDURE IN REVIEW 71
An interesting episode occurred in 1730, when the Board
referred an act of Virginia, "Amending the Staple of To-
bacco and Preventing Frauds in His Majesty's Customs,"
to the commissioners of the customs. They returned it and
asked to be excused from giving their opinion upon acts of
the assemblies "unless conimanded by the King in Council
or the Lords of the Treasury." The Board replied by send-
ing a list of acts upon which such an opinion had been ren-
dered in the past. The commissioners then expressed a
willingness to consider any measure that might effect the
revenue under their management, and asked that the act be
returned, at the same time insisting that they be excused
from considering matters of trade unless commanded by
his majesty or the lords of the treasury. The Board re-
turned the act with a request for an opinion " so far as
the act may relate to the revenue under their management,"
which was doubtless all that they had expected in the first
instance. After submitting a report, the secretary for the
commissioners wrote to the Board saying that they were
informed that the agent for Virginia had complained in a
memorial of not receiving an opportunity to be heard while
the matter was under consideration before them. The
Board sent them a copy of the memorial, to which the com-
missioners replied at length, defending themselves from the
allegation of unfairness and answering the agent's argu-
ments in favor of the act.^
To the lords of the treasury the Board applied also for
advice upon legislation affecting quit rents or the revenues
that the latter act was one with which the commissioners of the customs
had no concern. In 1753 a law of Pennsylvania for "Regulating
Fees " was referred to the commissioners and a report returned through
the lords of the treasury. CO/S-1273, V, lio.
* B. T. /., vol. xxxix, pp. 301, 313, 326. B. T. /., vol. xl, pp. 15, 17,
32, 41, 100. CO/5-1322, R, 133, R, 135, R, 137, R, 141. CO/S-1366,
pp. 55, S8.
72 REVIEW OF COLONIAL LEGISLATION [490
derived from the crown lands. In 1732 their lordships re-
ported upon an act of this kind passed in South Carolina;
but in subsequent cases they delegated the task to the audi-
tor general of the plantations. Communications between,
the Board and the auditor continued, as a rule, to pass
through the hands of the lords of the treasury; though
here again there was a tendency upon the part of the Board
of Trade to resort to a simpler procedure.^ The lords of
the treasury also examined and gave their approval to three
private acts of New York relating to a contract for farm-
ing the excise there. ^
Although it was the general policy of the Board to con-
sult the treasury regarding laws which pertained to the royal
revenue, the matter was wholly within their discretion and
many acts apparently germane to the subject were never re-
ferred. Upon the other hand, the treasury, unlike the law
officers, was actively engaged in the administration of the
colonies and had subordinate officials there who' frequently
furnished information regarding questionable legislation.
Upon the strength of their complaints the treasury some-
times took the initiative and brought the laws in question
to the attention of the Board of Trade. As such commu-
* The treasury condemned a law of South Carolina " For the Remis-
sion of the Arrears of Quit Rents," and to their solicitor was entrusted
the task of drafting a new one. CO/5-262, D, 33; 6 October 1732.
B. T. /., vol. xlii, p. 137, An act of Virginia "Settling the Titles and
Bounds of Lands" was referred to the auditor in April 1751. But he
failed to report and in December 1757 the Board wrote directly to the-
auditor and asked for an opinion. CO/5-1367, p. 321. CO/s-1329,
X, 28. His report was addressed to the Board of Trade. An act of
New York for the " More Easy Recovery of Quit Rents " was referred
in December 1758 with the request that it be laid before the auditor
general. B. T. J., vol. Ixv; 13 December 1758. CO/5-1129, p. 142..
The auditor reported upon another quit rent act of New York in De-
cember 1770. CO/5-1075, p. 131.
=*CO/5-ioS3, Cc, 124; 9 April 1724.
491 ] PROCEDURE IN REVIEW 73
nications carried, either by statement or implication, the
endorsement of the treasury, no further reference to it was
usual/
Although relatively few laws from the colonies came
within the cognizance of the lords of the treasury, or their
subordinates, their opinion upon such as concerned the
crown revenue appears to have carried great weight. An
act of Virginia for regulating the growth and shipment of
tobacco, upon which they had reported unfavorably, was
suffered to lie by because of the earnest solicitations of the
governor. But this is the only instance in which their con-
demnation of an act did not result in its disallowance.*
From the Bishop of London the Board obtained advice
upon laws concerning morality, religion and the Anglican
Church. Unlike its other counselors, the bishops were
members of the Board, and as such entitled to participate
in discussions there and to sig^ its representations. They
seldom attended, however, and when they did do so they
generally came in response to a special request from the
Board.' In all, the bishops submitted written reports upon
'The treasury referred to the Board a complaint from one John
Taylor regarding a duty levied upon his ships by the government of
New England; a complaint regarding the decrease in the revenue of
the post office caused by the issuing of bills of credit in Massachusetts ;
and a complaint from the surveyor general of customs in Carolina,
against an act laying a 10%. impost upon British manufactures.
CO/5-911, p. 404; 4 January 1705. CO/5-913, PP- 383, 399; June 1713.
CO/5-1293, p. 141 ; 20 March 1717. Walpole, Surveyor General of the
revenue, presented a representation regarding a New York quit rent
act; and the secretary of the treasury forwarded a memorial of John
Stewart, a contractor for transporting felons, against acts of Virginia
and Maryland which imposed restrictions upon the importation of con-
victs. B. T. /., vol. Hi, pp. I, 17; I February 1745. A. P. C, vol. v, p. 115;
7 October 1767. An act of Florida was disallowed upon the complaint
of the collector at Pensacola. A. P. C, vol. v, p. 346; 19 June 1772-
•CO/5-1366, p. 72; 27 May 1731-
» The Bishop of London appears to have been in attendance not over
74 REVIEW OF COLONIAL LEGISLATION [492
more than twenty acts of the assemblies. The majority of
these were referred by the Board with a request for an
opinion. But in several cases the bishops took the initiative
by requesting that no action be taken upon a law until they
had presented their views upon it. The majority of the
acts upon which they reported provided for the establish-
ment of the Anglican Church, the organization of parishes
or the settlement and maintenance of ministers. They sub-
mitted opinions, also, regarding three acts for regulating
marriage, two allowing affirmations in place of oaths, and
one act for the suppression of vice and immorality. A good
example of the activity and influence of the Bishop of Lon-
don is afforded by the fate of a New York act " Declaring
the Town of East Chester a distinct Parish from West
Chester." After repeatedly calling the attention of the
Board to this law, the bishop finally secured its considera-
tion in January, 1703. He reported that it was "preju-
dicial to the Church, in that (without establishing any fixed
maintenance for a minister in East Chester) it does im-
peach a former act which did make a convenient settlement
for Ministers of that and several other Churches named."
The law was accordingly disallowed in February, 1703.^
In but few cases, however, were laws repealed upon the
sole urgence of the Bishop of London. Those regulating
matters of a more general nature, such as marriages or
affirmations, were, as a rule, open to objections from other
sources. In 1727 the bishop secured the promulgation of
instructions to the governors in America, directing that they
half a dozen times between 1696 and 1776. Twice, in regard to the
Maryland act " For the Worship of God " he was accompanied by the
Archbishop of Canterbury. B. T. J., vol. xiii, p. 343. Once he sent a
personal representative. B. T. J., vol. xv, p. 16; 12 May 1702.
1 CO/5-1047, iR, 2>2>- B. T. J., vol. vii, p. 86. CO/5-1 119, P- 362.
CO/5-1048, V, 27.
493] PROCEDURE IN REVIEW 75
cause all laws against blasphemy, profaneness and immoral-
ity to be vigorously executed.^
In a few instances the Board of Trade referred laws to
the post-master general. Upon his recommendation an act
of North Carolina was disallowed in 1772, and the governor
instructed to seci^e a new law free from the objections
which he had raised against the former.^ Upon two acts,
one from Carolina, " Regulating the Court of Admiralty,"
and another from Massachusetts, " Regelating Fees," the
Board obtained an opinion from the admiralty."
Aside from the law officers, no opinion carried more
weight with the Board than did that of the English mer-
chants engaged in colonial trade. The upbuilding of com-
merce between the plantations and the mother country was
one of the chief ends of the British colonial policy ; and no
one had a better practical knowledge of the subject than
they. Moreover, the fact that their financial interests fre-
*B. T. /., vol. xxxvi, pp. Ill, 127, 128, 130, 139; 6 June 1727.
' CO/s-302, p. 187. CO/5-305, p. 147. A. P. C, vol. V, p. 34 ; 6 May
1772. The chief objection was against allowing post riders in certain
cases a fee of one shilling a mile. This was deemed exorbitant. In
1703 the Board referred to the post master general three laws of New
York for " Encouraging a Post Office." He replied with observations
at considerable length, but the Board appears to have taken no further
action in the matter. B. T. /., vol. viii, p. 67. CO/5-1 119, p. 412.
CO/5-1048, W, 6. He also reported upon the draft of an act for a
post office in Pennsylvania. CO/5-1263, N, 57; 20 November 1705.
' In transmitting the Carolina act the Board inquired as to its con-
sistency with his majesty's commission to the judge, with the rights
of the crown, and the methods of proceeding which ought to be ob-
served there. The reply was unfavorable and some correspondence with
the proprietors followed ; but apparently no action was taken by the
crown. B. T. /., vol. xiv, p. 312. CO/5-1261, p. 44; 3 February 1702.
The lords of the admiralty offered no objection to the Massachusetts
law regarding fees. B. T. /., vol. xxviii, p. 236. CO/5-867, W, 56;
8 May 1719.
76 REVIEW OF COLONIAL LEGISLATION [49^
quently were affected adversely by colonial legislation upon
matters of finance and trade, caused them to keep close
watch for the enactment of such laws, and quickly to regis-
ter objections against those of which they did not approve.
Indeed, in some cases, their complaints reached the Board
before copies of the acts themselves had arrived from the
colony. Occasionally, on the other hand, the Board took
the initiative, and, despite the fact that the merchants pos-
sessed no official status, requested from them advice or in-
formation. Because of their proximity, the merchants of
London were most often in evidence. But certain acts con-
cerning the slave and tobacco trades called forth remon-
strances, as well from those of the " out ports," Bristol,
Liverpool and Glasgow.^ Usually several of the merchants
appeared at the Board whenever one of their memorials
came up for consideration, and one or two of the more
prominent spoke in support of their petition, or to refute
arguments advanced by the agent. At the more important
" hearings," when the proceedings assumed the formality
of a trial at law, the merchants intrusted the management
of their case to a solicitor, and did not address the Board
unless requested to give an opinion or to impart additional
information.
Precisely how much influence the merchants exerted in
determining the fate of any particular enactment, it is diffi-
cult to say. Their petitions were, for the most part, in
accord with established commercial policy, and doubtless
many acts disallowed at their request would have met the
same fate eventually without such interposition. But
others which were free from legal objection would certainly
" Such petitions had, upon an average, about ten signers. In some
cases their wording is so similar as to suggest that the merchants of
different ports, acting in concert, entrusted the writing of them to the
same person.
495] PROCEDURE IN REVIEW yy
have passed unnoticed. Moreover, the fact that laws re-
garding trade and finance were being brought continually
to the attention of the Board contributed, in turn, to the
development of a more effective and consistent policy upon
those subjects. The protests of the merchants were most
numerous and at the same time most effective against laws
imposing obstacles to the collection of their debts. These
include bankruptcy legislation, stay laws, and acts regulating
bills of exchange and executions upon judginents. Next in
point of number were petitions for the disallowance of acts
authorizing the emission of bills of credit. These, how-
ever, seldom accomplish their whole purpose, because the
Board came to realize that some form of currency was an
economic necessity in the colonies, and because they hesi-
tated to annul laws under which bills had already been
issued. The merchants complained also against many acts
levying duties upon the importation of liquors, slaves or
goods of British manufacture. Here they generally accom-
plished their object by securing the disallowance of the
offensive law, or at least an instruction for the passage of
an amendment repealing the particular duty in question.
Other memorials had to do with acts of Virginia and Mary-
land for regulating the growth and export of tobacco, laws
governing the conduct of the fisheries or the Indian trade,
or providing for the erection of ports and towns. The
activity and influence of the merchants at the Board of
Trade did not escape notice in the colonies, and letters from
the governors sometimes betray the presence of consider-
able ill feeling against them occasioned by the disallowance
of a popular law.^
For information regarding the aim and purpose of colo-
^Gooch of Va. to the Board, CO/s-1322, R, 160; 22 December 1731.
Fauquier of Va. to the Board, CO/5-1330, Y, 85; 29 June 1763.
yS REVIEW OF COLONIAL LEGISLATION [495,
nial legislation and the special circumstances leading to its
enactment, the Board of Trade was dependent upon two
principal sources : the representations of the agents in Eng-
land, and letters received from the governors/ Soon after
its formation the Board, wishing to discuss the raising of
levies with representatives of the various colonies, noted a
want of authorized agents v»?ith whom to consult. Accord-
ingly it was ordered that the next letters to Virginia, Mary-
land and New York should intimate that various other
places had agents, and that the want of them was an in-
convenience, " and may happen in some occasion to prove
prejudicial to them, by delays in their public affairs, and loss
of opportunities for their public advantages." And in like
manner the Board on other occasions urged upon Massa-
chusetts, Maryland and New Jersey the expediency of main-
taining accredited agents in England.^ Eventually all the
colonies complied with this advice. From time to time the
Board required agents to appear and present their creden-
tials, apparently in order that there might be available a
correct list of persons serving in that capacity.^
^ The official journals of the council and assembly were also to a
certain extent useful for this purpose.
^B. T. J., vol. X, pp. 310, 311 ; 15 October 1697. C. S. P., 1700, p. 629;
30 October 1700. The Board wrote to Gov. Blackiston of Maryland :
" It will be for the service of the Province that an Agent be con-
stituted, with authority * to solicit the dispatch of acts * * and all
other public business. * The charge need not be great. It is a thing
done by most of the Plantations, and proves very useful to them * "
C. S. P., 1700, p. 709; 3 December 1700. Also CO/5-726, p. 99.
CO/5-1123, p. 441.
^ B. T. J., vol. xxvii, p. 34; December 1718. B. T. J., vol. Ixi, unpaged ;
19 December 1754. In 1740 the Board summoned all the agents to at-
tend for a discussion " at large of the Problem of Paper Currency in
the Colonies." They, however, proved non-committal, saying that they
had received no instructions in the matter. B. T. J., vol. xlviii, p. 94.
In regard to local disputes caused by agents being appointed by the
lower house without the concurrence of the governor and council, the
497] PROCEDURE IN REVIEW yg
The most important duty of the agent was that of over-
seeing and furthering the review and confirmation of legis-
lation. As a rule, public acts progressed with reasonable
promptness from the Board to the law officer without the
necessity of urgency upon the agent's part. Having in-
formed himself regarding legislation by letters from the
colony or any other means at his disposal, it behooved the
agent to wait upon the law officer and solicit a report. After
obtaining this he sometimes attended the Board to ask for
an early consideration of acts there. When they were taken
up he was on hand once more to furnish whatever infor-
mation was required and to explain away objections. If
opposition to the confirmation of an act led to a formal
hearing before the Board, the agent either defended the in-
terests of the colony in the matter or, in the more important
cases, employed a solicitor to do so. The work of the agents
in preventing delays, and in explaining legislation to the
Board in the most favorable light, was of the greatest im-
portance.^ Unfortunately, however, the position was often
held by Englishmen with little first-hand knowledge of colo-
nial conditions, or by Americans who having been long
resident in England, were out of touch with colonial affairs,
and consequently dependent upon information and instruc-
tions from the colony. Having failed, either from mishap
or neglect, to receive these, they were obliged either to ask
the Board for a long delay, or to defend the act in question
Board took no decisive stand, although it insisted in a general way
that agents representing a colony should be appointed by the governor,
council and assembly. In 1771 Governor Hutschinson was instructed
to that effect, CO/5-920, p. 309.
' On May 28, 1754 the Board made a representation for the repeal of
nine acts of South Carolina. On June 26 Mr. Crockatt, the agent, was
called in. After he was gone the Board agreed to allow the acts to
lye by. Dickerson, Am. Col. Govt., p. 267, note 628.
8o REVIEW OF COLONIAL LEGISLATION [^gg
without an adequate knowledge of the subject/ Moreover,
the agent spoke with the professional bias of a solicitor
bound to further the interests of clients rather than to give
an unprejudiced opinion based upon the best information
at his disposal.
Of far greater value to the Board of Trade were the
comments which, in accordance with their instructions, the
governors transmitted upon all legislation. Their fullness
and accuracy varied considerably according to the ability
and political insight and prejudice of the different gover-
nors, and they were subject necessarily to a strong official
bias. Nevertheless, such comments came first-hand from
one in close touch with the colony, and therefore informed
in regard to local need and sentiment. Regarding acts of
unusual importance or of doubtful propriety, governors
were apt to write at considerable length. Others they often
grouped, attaching brief comments, such as " beneficial,"
" customary," or " fit to be allowed." Consequently, it was
not unusual for the Board to allow an act to lie by, while
they wrote to the governor for a more detailed account of
his reasons for passing it. In some instances governors be-
trayed a naive and amazing unconsciousness of defects in
laws which they recommended for confirmation. Again,
they frankly acknowledged the existence of grave faults,
stating, in effect, that having resisted popular clamor for
legislation even more objectionable, it seemed best to assent
and so place the burden of refusal upon the government in
England. Or again the governor protected himself by
securing the inclusion of a suspending clause, and then
^ On July 24, 1735, Guerin, Agent for New York told the Board that
he was not ready to ofifer reasons for passing an act regarding bills of
credit. B. T. I., vol. xliv, p. 151. Furie, agent of South Carolina,
failed to speak in defence of a fee act, because he had no instructions
regarding the law, and did not know the reasons for it. B. T. J., vol.
xlvi, p. 40; 10 March 1737.
499] PROCEDURE IN REVIEW gl
damning the act by faint praise. A governor who stood
well with the Board, and could justify his recommendations
in an able fashion, was in a position to exert no inconsid-
erable influence upon the fate of legislation. A conspicuous
example of this fact is afforded by the manner in which
Governor Gooch of Virginia secured legislation regulating
the growth and exportation of tobacco, although his law
was opposed by a considerable body of local sentiment and,
in no uncertain terms, by the commissioners of customs.*
Notwithstanding strong objections from the king's counsel,
a New Hampshire law for " Restraining the Taking of
Excessive Usury " was confirmed because the governor had
written that it was of the greatest importance to the prov-
ince.^ An opportune letter from Governor Shirley secured
the confirmation of a Massachusetts excise act, despite
strong opposition from the province; while in 1761 Gov-
ernor Ellis, of Georgia, appeared before the Board and
saved a law concerning the recovery of debts, for the dis-
allowance of which a representation had already been
drawn.'
In conclusion, a study of the Board of Trade reveals a
small group of expert colonial advisers, in close touch with
the high officials of state, with the legal advisers of the
crown and with the several administrative departments of
the government; a body sensitive to conflicting interests,
fair, painstaking and laborious, but possessing withal no
very great powers,
^A. P. C, vol. iii, p. 326. Cf. infra, p. 118.
' CO/s-930, p. 77. CO/5-943, P- 16, A. P. C, vol. V, p. 282 ; 9 Decem-
ber 1770.
• CO/5-918, p. 325; 6 August 1755. B. T. /., vol. Ixviii, pp. 281, 282;
6 June 1761. These examples, however, should not be accorded undue
weight. A much greater number might easily be given in which laws
recommended by the governor in the strongest terms, were found
objectionable and forthwith disallowed.
82 REVIEW OF COLONIAL LEGISLATION [500
Unless neglected or laid by probationary at the Board of
Trade, laws progressed, together with the report or repre-
sentation upon them, to the Privy Council, by an order of
which they were confirmed or disallowed, or in some cases
left conditionally in force/ For several years subsequent
to 1696 the Council scrutinized the findings and recommen-
dations of the Board rather closely. In one instance it sent
a representation to the attorney and solicitor general with
the request that they report upon it ; ^ but in no case during
this period was its final action upon a law contrary to that
recommended by the Board. After 1710, however, the
Council gradually acquired a habit of delegating the exam-
ination of legislation, and the recommendations from the
Board pertaining to it, to a committee of its own members,
whose findings it invariably indorsed without question. The
proceedings of the Council in this connection were thence-
forth purely formal. The part taken by the committee in
legislative review becomes, therefore, of sufficient impor-
tance to warrant a somewhat detailed consideration.
During the early part of the eighteenth century the
Privy Council for the most part relinquished the exercise
of its discretion to a small group of its own members, re-
taining to itself little authority save in matters of formal
and customary procedure. The process by which this
change came about is obscure, and lies without the limits
^ The precise wording of the order in council varies considerably
from time to time. In some cases the act was inserted in full. But
the usual course was to give only the title and date of passage. The
action is represented as being taken by " His Majesty in Council," or
by "His Majesty with the advice of the Privy Council," or by the
" Lords Justices with the advice of the Privy Council." It is usually
stated, also, that the Council has acted upon the advice of the Board
of Trade, or of the Board and a committee of the Council.
» C. S. P., 1697-8, p. 523 ; 3 November 1698.
5oi] PROCEDURE IN REVIEW 83
of this study.* Suffice it to say that after 17 10 acts were
referred by the Council with increasing frequency to "the
Committee on Appeals," " the Committee of the Whole
Council," " a Committee for the Plantations," or simply
to " the Committee " — terms which were sometimes used
interchangeably.^ The body thus designated seems to have
had no fixed membership, but rather to have consisted of
members of the whole Council working now upon one kind
of business and now upon another, for the time being.
In 1702 a representation of the Board upon several Bar-
badoes laws was referred to the " Lords of a Commit-
tee of the whole Council," and upon their recommenda-
tion one of the acts was disallowed.' And on the same
day a committee of the whole, having obtained an opinion
from the attorney general, recommended that Governor
Lord Combury of New York be instructed to induce the
assembly to repeal an objectionable clause of their enact-
ment* The next reference involving colonial legislation
occurred in 1714, when the "Committee for hearing Ap-
peals " returned a representation upon several Pennsylvania
laws to the Board, with the request that they investigate
and report back " by what grants or authorities several of
His Majesty's Plantations do claim a power of making
temporary laws." " After the accession of the Whigs to
power in 17 14, references to the committee become some-
' For a full discussion of the matter see an article by E. R. Turner,
entitled "The Development of the Cabinet, 1699-1760," in the American
Historical Review, vol. xviii, pp. 756-768, and vol. xix, pp. 27-43.
Pages 758 and 759 of the former volume are in particular germane
to the subject. See also, Andrews and Davenport, Guide to the MS.
Material in the British Museum, pp. 172, 173.
• A. P. C, Introd., vol. ii, pp. vi, xi, and vol. iii, pp. viii, ix.
» A. P. C, vol. ii, p. 415 ; 6 July 1702.
*A. P. C, vol. ii, p. 413; 9 July 1702.
» B. T. J., vol. xxiv, pp. 228, 229. CO/5-1292, p. 418; 2 September 1714.
84 REVIEW OF COLONIAL LEGISLATION [502
what more frequent. There occurred one in October, 17 14,
one in 1715, one iij 1719, and two in 1720. During the
decade following the increase is gradual though constant,
until by 1731 the reference of acts by the Council to the
Board through the committee had become the rule, and
reference directly to the Board the rare exception/ The
Board, in turn, came gradually to address its reports to the
" Lords of the Committee " rather than to " His Majesty
in Council." In the great majority of cases the committee,
after examining acts, simply endorsed the recommendations
in regard to them already made by the Board of Trade.
Indeed, their reports which appear in the Acts of the Privy
Council consist almost exclusively of Board representations
adopted with little or no alteration.
Various deviations from the customary procedure, how-
ever, emphasize the fact that the increasing initiative and
activity of the committee necessarily resulted in a corres-
ponding decrease in the prestige and authority of the Board
of Trade. The former sometimes sent acts and represen-
tations back to the Board for further consideration,^ Or
again it referred them to the treasury^ or the attorney and
* After about 1758 the Council sometimes referred business directly
to the Board, with directions to report to the committee. A. P. C,
vol. iv, Introd., vol. vi. A. P. C, vol. iv, p. 367.
'A. P. C, vol. iii, p. 225; 22 May 1729, The committee sometimes
attained much the same result by summoning the Board to meet with
itself in joint session. The journal for 1731, for example, contains the
following entry : " The Board at the desire of the Lords of the Com-
mittee having attended them this morning, the Committee took into
consideration the following reports of this Board. [Three reports
upon acts of New Jersey, Jamaica and South Carolina.] The Lords
of the Committee then desired the Board would please to attend again
tomorrow Senight to hear what the Agent for New England had to
offer regarding two articles in the Governor's instructions." B. T. J.,
vol. xl, pp. 287, 288. See also CO/s-870, Z, 71; 15 October 1729.
B. T. J., vol. xl, pp. 196, 202; 28 July 1731. B. T. /., vol. xliv, p. 102;
17 June 1735.
^03] PROCEDURE IN REVIEW 85
solicitor general, with instructions to report, not to the
Board, but to itself.^ The committee sometimes overruled
the Board's suggestions for instructions to governors, or
took the initiative in suggesting new ones.' In some cases
it even reversed the recommendations of the Board in re-
gard to the confirmation or disallowance of acts. A con-
spicuous example of this is afforded by the course of a New
York act levying a two per cent tax upon the importation
of European goods. The Board, while objecting to the tax
imposed, recommended its confirmation because of the
" present necessity of the government." But the committee,
influenced probably by the merchants, insisted upon its dis-
allowance.' In like manner, an act of Antigua, constituting
a court of attachments, was disallowed upon the recommen-
dation of the attorney and solicitor generals, although the
Board had urged its confirmation.*
Parties dissatisfied with the outcome of a hearing at the
Board could continue the contest before the committee.
There the procedure was more formal, each side filing a
written brief and being heard by counsel only. If new anH
important facts were brought out, the committee might refer
the whole matter to the Board for further consideration.'
As the work done in committee became of more importance,
the attendance there seems to have increased, until often
after the middle of the century a committee was merely the
Council sitting as such, a transition from one to the other
» A. P. C, vol. iii, pp. 55, 350. CO/5-1366, p. 344. CO/5-879, Cc, 4-
» A. P. C, vol. iii, Introd., pp. xix, 605, 606, 695. A. P. C, vol. iv, pp.
153, 712. B. T. J., vol. lix; 15 February 1752.
* The act contained a suspending clause and two years elapsed be-
tween the Board's representation and the report of the committee.
CO/5- 1124, p. 283. CO/5-1053, Cc, 125.
*A. P. C, vol. iii, pp. 180; 23 November 1728. A. P. C, vol. iii, p. 63;
Barbadoes, 21 February 1724.
*/4. P. C, vol. v. p. 351 ; Jamaica, 19 December 1772.
86 REVIEW OF COLONIAL LEGISLATION [504
being indicated in the Acts of the Council by the words,
" afterwards their Lordships sat as a Committee." ^ The
committee report upon a Massachusetts act of " Indemnity "
in 1767, was signed by twenty-six persons, including the
lord chancellor, the lord president and the chancellor of the
exchequer, while the order in council carried thirty-one
names. Thirteen signatures appear upon both documents.*
This law, however, had aroused much interest. The usual
attendance in committee was probably not so large, even
during this later period.
* A. P. C, vol. iv, Introd., p. ix, p. 207.
» CO/s-892, p. 447.
CHAPTER III
The Procedure of the Government in
Legislative Review (Continued)
By means of instructions limiting the discretion of
governors in giving assent to proposed legislation, the
the government exercised a considerable restraint upon
the law-making power of the legislatures in the royal
colonies. At the close of the seventeenth century it had
already imposed general rules regarding the form of
enactments and the manner of their transmission. It
was insisted that enacting clauses should read "by the
Governor, Council and Assembly," and that each separate
act should deal with but one subject, and contain no clause
foreign to its title.' Unless passed for a temporary end ,
acts must be of indefinite duration ; while laws for levy-
ing money were not to continue for less than one year."
Governors were not to re-enact any law except upon
very urgent occasions, and in no case more than once
without his majesty's express consent. Acts altering,
confirming or suspending other acts must indicate by
title and date of passage the precise laws effected.^
Governors were instructed to transmit laws within
three months from the time of their enactment and to
send duplicates by the next conveyance, upon pain of
• CO/5-1362, p. 141 ; Virginia, 22 April 1717,
» CO/5-726, p. 177. CO/5-914, p. 378.
*C. S. P., 1669- 1674, p. 625; Jamaica, 1674. CO/s-914, p. 378; in-
struction to Shirley, 18 July 1716.
505] 87
88 REVIEW OF COLONIAL LEGISLATION [506
forfeiting one year's salary/ Each act was to bear in
wax a separate imprint of the provincial seal. It was to
be carefully abstracted in the margins, and to bear the
dates of its passage by the governor, council and assem-
bly. The governor was to be " as particular as may be "
in his observations upon every act ; " whether . . introduc-
tive of a new Law, declaratory of a former Law, or
whether [it] does repeal a Law then before in being; . .
and to send . . the reasons for the passing of such law,
unless the same do fully appear in the preamble."
Copies of the official journals of the council and assembly
were to accompany acts.^
Other instructions of a more detailed and specific
nature forbade the governor's assent to laws for the ac-
complishment of certain ends, such as laying a duty upon
European goods imported in English vessels,^ or placing
inhabitants of the colonies upon a more advantageous
footing than those of Great Britain, or affecting the trade
or navigation of Great Britain, or levying duties upon
British shipping or the product of British manufactures.*
'C. S. P., 1677-80, p. 608; 30 September 1680. A^. Y. Col. Docs., vol.
"i. P- 37^- The governor of Jamaica was instructed in 1670 to transmit
laws " at the first opportunity." C. S. P., 1669-74, P- 625. This phrase
was used also in the case of New Hampshire, possibly because com-
munication with England was uncertain. But the form quoted above
was the usual one after 1680.
* CO/5-1293, p. 339; Pennsylvania, 1724. N. Y. Col. Docs., vol. v,
p. 127; 27 December 1709. CO/s-907, p. 103; Massachusetts, 30 Janu-
ary 1697. The Board suggested to Bellomont that acts be in a form
convenient for binding. CO/s-1118, p. 120. After the first quarter
of the eighteenth century most of the laws were transmitted in print.
'iV. y. Col. Docs., vol. V, p. 706. CO/s-1053, Cc, 125; 30 April 1724.
*A. P. C, vol. iii, p. 348; 27 January 1732. A''. H. St. Papers, vol.
xviii, p. 45; 5 May 1732. There were prohibitions against acts making
duties upon negroes payable by the importer, or imposing duties upon
507] PROCEDURE IN REVIEW 89
In other cases the prohibition was conditional, usually
upon the insertion of a clause suspending the operation
of the act until his majesty's pleasure concerning it could
be known. Thus, for many years governors were for-
bidden to pass laws emitting bills of credit without a
suspending clause ; and it was a standing rule that there
should be no laws " of an unusual or extraordinary nature,
wherein his majesty's prerogative or the property of his
subjects might be predjudiced " without consent pre-
viously obtained or the insertion of a suspending clause.*
While the greater part of these instructions were of a
general nature, and binding upon all the governors,
others had to do with local concerns and were issued
only to governors of particular colonies. In 1770, for
example, Virginia was forbidden to pass any law increas-
ing the duty already established upon the importation
of slaves ; ' while Massachusetts was forbidden to appoint
an agent otherwise than by an act of the whole legisla-
ture, or to levy a tax upon the salaries of government
officials, except such as were paid by the assembly.'
This method of controlling the assemblies was more
effective than the disallowance of laws already passed
because its operation was more uniform in all the colo-
the importation of felons. CO/5-1128, p. 139; 5 July 1753- In 1767
acts by which the number of members in the Assemblies were enlarged
or diminished were forbidden; (B. T. J., vol. Ixxix, p. 250. N. Y.
Col. Docs., vol. viii, p. 175) in 1771 laws by which the property of non-
residents was made liable for the payment of debts; (CO/5-999, P- 246)
and in 1773 laws for naturalization or divorce, or the confirmation of
land titles. CO/s-930, p. 563- ^- T. J., vol. Ixxx, p. 142. A. P. C,
vol. V, p. 552. This list is not exhaustive.
' Instruction to Shirley CO/S-914. P- 378; 18 July 1716.
•CO/5-1334, Cc, 8; 9 December 1770. A. P. C, vol. iv, p. 746;
II July 1766.
•CO/5-920, p. 309; 16 March 1771.
90 REVIEW OF COLONIAL LEGISLATION [508
nies, and because it was preventative and served to check
abuses at their source. A legislative indiscretion upon
the part of one or two of the assemblies was apt to be
met by a general instruction, which more or less effec-
tively locked the stable door so far as the other colonies
were concerned. Instructions once issued were contin-
ued in succeeding documents unless it became evident
that because of changed conditions or circumstances
they were no longer required. In 1738 the Board "di-
gested under several heads, such as Council, Assembly,
Militia" all general instructions. In this manner a
recognized form became established, and the Board in
making its representation upon the draft of a new gov-
ernor's instructions noted only such articles as were
added to or differed from those issued to his predeces-
sor.^
Other instructions were mandatory rather than prohibi-
tive, bidding the governors to urge upon the assemblies the
passage of certain salutary laws. In this fashion the Board
recommended the enactment of laws to secure the humane
treatment of negro slaves and Indians, and to obtain per-
manent acts for regulating the militia.^ The governor of
Maryland was instructed to "do all that in you lyes " to
secure the enactment of a law prohibiting the export of
bulk tobacco, while the governor of South Carolina was
directed to urge upon the assembly the necessity of pro-
^ B. T. /., vol. xlvii, p. 24. Instructions were suggested either at the
Board, or in the Council or its committee. In any case a draft of the
instruction proposed was prepared by the Board, approved by the com-
mittee (or prior to about 1720 by the Council) and issued by an order
in council.
* B. T. J., vol. iv, p. 213 ; 6 October 1683. CO/5-403, P- 7^- CO/S-
1073, P- 17-
509] PROCEDURE IN REVIEW 91
viding a jail and of keeping the same in repair.^ Instead
of allowing an objectionable act to lie by and instructing
the governor to obtain its repeal or amendment, the Board
sometimes secured the same result in a more emphatic and
effective fashion by disallowing the law and stating specifi-
cally in an instruction the modifications which would serve
to make it acceptable to the government. Thus it was
stated that if in the act disallowed for " Securing the Ad-
ministration of Pennsylvania " a clause be inserted that on
the death of the Lieut. Grovemor, the Proprietors do name
another and obtain her Majesty's approbation within six
months, then the act will be confirmed." ^ In the case of
a Jamaica act which had been disallowed because, contrary
to the governor's instructions, it enlarged the number of the
assembly and contained no suspending clause, permission
was given to pass " a new law corresponding in all respects
to that repealed." *
In several instances the Board, disapproving an act sub-
mitted, drafted a measure more to their liking and sent it
to the colony for enactment. But it was not insisted that
these drafts be accepted unaltered. Rather were they sent
to show what the Board conceived " his Majesty might not
be unwilling to approve of in case the General Assembly
think fit to enact it accordingly." * In the most conspic-
uous instance of this kind a Maryland act " For the Ser-
vice of God and the Establishment of a Religion " was re-
placed by a new bill, containing " proper alterations "
* CO/s-724, p. 47 ; 12 October 1691. B. T. J., vol. xlv, p. 90.
* A. P. C, vol. ii, p. 615; 24 October 1709. Similar action was taken
regarding an act of North Carolina. A. P. C, vol. v, p. 341, CO/s-305,
p. 155; 12 May 1772.
*A. P. C, vol. V, p. 351 ; 5 March 1773.
*B. T. J., vol. ix, p. 351.
92 REVIEW OF COLONIAL LEGISLATION [510
agreeable to the toleration allowed in England, together
with a clause for repealing the act then in force. ^
When the enactment of a law was forbidden unless it
contained a suspending clause, or unless his Majesty's as-
sent had been previously obtained, the governor or the
assembly sometimes chose the latter alternative and sub-
mitted the tentative draft of a desired law to the Privy
Council. In this manner, for example, Governor Bernard
secured permission to approve an act which established a
lottery for the benefit of Harvard College.^ Though such
bills were approved, amendments were sometimes suggested
by the Board. In 1704 they considered the draft for a re-
vision of the laws of Virginia prepared by the governor
and a committee of the council, and suggested many
changes to be made before its final enactment.' And j>er-
mission was accorded New Jersey to issue certain bills of
credit providing a clause regarding the disposal of interest,
^A. P. C, vol. ii, p. 362; 13 February 1701. CO/s-726, p. 170. Some
English Quakers objected, esteeming themselves "under hard usage
that a Law contrary to their fundamental settlement and the ancient
Law of that Province should be prepared here and sent over there."
They complained that it was not customary for the King to prepare
money Bills and give directions to have them passed into acts.
C. S. P., 1701, p. 2U. The Massachusetts council refused assent to the
draft of a law regarding " Pirates and Privateers " because it en-
larged the jurisdiction of the admiralty. Acts and Resolves, vol. i,
p. 263; 3 June 1699. In 1735 an act was drafted by the attorney and
solicitor to replace a South Carolina quit-rent law. But the agent and
the governor so strongly defended the act in force that the matter
appears to have been dropped. B. T. J., vol. xliii, pp. 149, 162, 163;
vol. xliv, pp. 229, 232, 233, 240. CO/5-364, E, 44.
* CO/5-920, p. 148; 24 December 1762. B. T. J., vol. Ixix, p. 317.
*5. T. /., vol. ix, pp. 12, 13, 14; April 1704. CO/5-1361, p. 4- The
Board informed the attorney and solicitor that these bills might "be
altered in any part thereof as Bills transmitted from Ireland." CO/5-
1360, p. 469.
51 1 ] PROCEDURE IN REVIEW ^3
to be prepared in England, should be inserted verbatifn in
the act for emission/
From time to time the colonies were urged to gather and
to transmit a complete collection of their laws in force, for
convenience in reviewing new acts and in judging colonial
appeals. With this request all the colonies, royal, charter
and proprietary, at rather long intervals complied.* The
order, long a standing instruction to the governors that
they cooperate with the councils in revising the laws and in
sending home a complete body with an opinion upon each,
met with less response. It was expected that the revisions
would be examined and approved by the Privy Council,
and then returned to the colonies for re-enactment — a pro-
cedure of which the lower houses, from whence must come
the necessary appropriations, strongly disapproved.
Complaints from the Board regarding the confused state
of the Maryland laws, led to a general revision by the
assembly, in 1699, and the passing of a blanket act "Ascer-
taining the Laws." But this was disallowed, because the
Board had contemplated a revision by the governor and
council only, and because the inclusion of so many acts
under one title constituted a violation of the governor's
instructions.'
Because of opposition or indifference upon the part of
the burgesses, and of procrastination upon the part of the
M. P. C, vol. iv, p. 228; 1755. The Board insisted that the submission
of drafts in this manner be approved by the governor, although it did
not require that he approve of the subject matter. B. T. /., vol. xxxvi,
p. 230; 1727.
* A. P. C, vol. iv, p. 153. Qjllections of the acts of New York were
made in 1699, 171 1, 1740, of Massachusetts in 1713, of New Hampshire
in 1702, 1741, 1761 and 1768, and of Virgfinia in 1700, 1741 and 1761.
New York, New Hampshire, South Carolina and Virginia complied in
1740-1 ; South Carolina, New Hampshire, Virginia and Pennsylvania
in 1761.
•Board to Blackiston, CO/ 5-725, p. 468; 4 January 1700.
94 REVIEW OF COLONIAL LEGISLATION [512
members of a joint committee of the council and the house,
chosen by the governor to perform the task, a revision of
the Virginia laws commenced in 1698 consumed several
years/ In January, 1704, Secretary Jennings of Virginia
attended the Board of Trade with two books, the large one
containing " a complete collection of all laws in force."
The lesser contained copies of bills prepared by the com-
mittee of revision, and comprehended all that was material
in the other book. When once the latter were " enacted
and confirmed," then the other was to "determine and be-
come voyd." After the Board had proposed sundry altera-
tions, the bills were returned to the colony, where fifty-
eight laws were enacted in October, 1705.^ In 1713 Gov-
ernor Spotswood wrote the Board that, notwithstanding the
great length of time spent in securing the late revision, and
its cost of upwards fifteen hundred pounds, the work was
still imperfect and unsatisfactory.^ He accordingly in-
trusted the task of making a further revision to the secre-
tary, attorney general, judge of the admiralty and clerk of
^The "Account of the present State and Government of Virginia"
signed by Hartwell, Blair and Chilton, sets forth the need of a revision
there. " There being great scarcity of able Lawyers and wise Poli-
ticians in that country — very few of the Laws have been as well drawn
and framed in the Beginning, but that Experience has discovered many
errors and Imperfections, which they have endeavored to patch up and
mend with subsequent laws, and sometimes by repealing the old law
and making a new one. [So] the body of their Laws is become not
only long, and confused : But it is a very hard matter to know what
laws are in force, and what not. * * " CO/5-1359, p. 130; 20 October
1697.
"5. T. J., vol. viii, pp. 356, 357; ii January 1704. Five of these acts
were afterwards disallowed in England because of " many disagreeable
clauses foisted in both by the Committee and the Assembly that passed
the late revised laws." Spotswood to the Board, CO/5-1363, p. 500;
II February 1713.
'CO/5-1363, pp. 500-502; II February 1713.
2 13] PROCEDURE IN REVIEW 95
the council, who as remuneration sought, apparently with-
out success, a royal grant of the sole privilege of printing it*
In 1746-8 the laws of Virginia were revised once more
by a joint committee of the two houses,^ and a " body " of
eighty-nine acts were approved by the assembly and dis-
patched to England. In October, 1751, the Privy Council
confirmed fifty-seven of these acts, and disallowed ten. The
Council also approved a committee report representing the
action of Virginia, " as a method worthy of imitation and
which we could wish to see followed in all Your Majesty's
Colonies in America, since nothing can more effectually
tend to promote Order and good Government, secure the
Properties and Possessions of your Majesty's subjects, and
prevent litigious Controversies and Disputes than a clear
and well digested body of Laws." Accordingly the gover-
nors were instructed, " jointly with the Council and As-
sembly, ... to consider and revise all laws, . . . except-
ing only such as relate to private property, . . . and in lieu
thereof to frame and pass a complete and well digested body
of new laws, . . . taking care that no law be passed with-
out a clause suspending its execution.'
The instruction, however, proved ineffectual, for the
assemblies had no mind to risk the disallowance of laws
* Spotswood to the Board, CO/5-1364, p. 403; 3i July I7i6. This re-
vision differed from the former in that the laws therein were fully
enacted by the assembly before being dispatched to England. CO/5-
1318, P, 144; 25 October 1717.
•A " joint committee of some of the principal members best acquainted
with the business and living nearest the capital, to perform the work
in vacation times, all bills from them are to be reported to the As-
sembly where they are to be formally ratified and passed. Nor is any
law to be abrogated or altered but by act of the Assembly." CO/5-
1326, V, 90; Gooch to the Board, 4 July 1746.
*A. P. C, vol. iv, p. 132; 31 October 1751. B. T. /., vol. lix, un-
paged; 14 February 1752. A^. Y. Col. Docs., vol. vi, p. 755.
96 REVIEW OF COLONIAL LEGISLATION [514
already confirmed and established, and were loath to resort
to such an extensive use of the suspending clause. The
laws of Massachusetts, by reason of the many temporary
acts annually renewed and others many times amended,
were particularly in need of revision. The assembly there
having rejected such a proposal, Governor Shirley was in-
structed to lay the matter " in the strongest manner " be-
fore them.^ With difficulty he succeeded in securing the
appointment of a joint committee empowered merely to
suggest amendments " necessary in any particular Laws." ^
Nothing further was done, and shortly after the instruction
was omitted from those issued to all the governors. Later
developments had revealed considerable inconvenience re-
sulting from the Virginia revision, at first so cordially ap-
proved. The house of burgesses issued formal protests
both against the confirmation and the disallowance of so
many acts; against the former because it deprived them of
the power to make necessary amendments, and against the
latter because of the importance and popularity of the laws
annulled. The Board, upon the other hand, in recommend-
ing that the instruction be discontinued, complained that
the legislature in framing the new laws had " availed itself
of the opportunity, either totally to set aside or to alter in
part several of the former laws, which had been confirmed
by the Crown." Moreover, an act regarding " Executions
for the Relief of Debtors," against which the merchants
bitterly complained, was found to have been confirmed,
1 A. P. C, vol. iv, p. 207; 19 April 1753. B. T. /., vol. Ix, unpaged;
I May 1753-
* CO/5-887, Hh, 19; 20 April 1754. Shirley admitted that if the new
laws were acted on two or three years and then disallowed incon-
veniences would arise. But this, he said, was guarded against by
the provision that each act contain a suspending clause! He referred
to the instruction as a " Remarkable instance of His Majesty^s paternal
care over his subjects." CO/s-887, Hh, 12.
515] PROCEDURE IN REVIEW gy
among others, and so placed beyond the possibility of dis-
allowance.^
None of the proprietary colonies save Pennsylvania regu-
larly submitted its legislation to the Privy Council for re-
view. Upon several occasions, however, the Council dis-
allowed, either directly or through the proprietors, acts of
Carolina against which complaints had been received. It
also dictated to the proprietors the purport of instructions
forbidding the governors to enforce objectionable laws or
to permit the enactment of similar ones in the future. This
was done upon the ground that the acts annulled or for-
bidden were repugnant to the laws of England, and there-
fore constituted a violation of the proprietary charter.
Thus, in 1706, the Council declared two acts for the " Es-
tablishment of Religious Worship " " not consonant to
reason and repugnant to the laws of England, and there-
fore not warranted by the Charters," and accordingly issued
an order directing the proprietors to declare them null and
void.' In 1709 the proprietors were ordered to forbid the
enforcement of an act levying a duty upon skins taken
across Carolina by Indian traders of Virginia." In 1718
the Council went a step further and itself declared a law,
which had not yet been transmitted to the proprietors, to
be " null and void," and directed that the governor be
ordered not to pass any such act in the future.* Laws
' Representation upon draft of instructions to Bernard, CO/s-920,
pp. 46-52 ; 24 April 1761. B. T. /., vol. Iviii, unpaged ; 26 November 1751.
* These acts came before the Board of Trade in connection with an
address from the House of Lords upon complaints made by the settlers
of Carolina against the proprietors. A. P. C, vol. ii, p. 506; 10 June
1706.
* A. P. C, vol. ii, p. 610; 26 September 1709. CO/5-1316, O, 40.
* An act additional to an " Impost upon liquors, goods etc." passed
in 1717 and disallowed May 14, 1718. CO/5-1265, Q, 154, The agita-
tion which resulted in the overthrow of the proprietary government
had already begun.
98 REVIEW OF COLONIAL LEGISLATION [516
passed by the proprietary governments of New Jersey and
Maryland appear to have met with no objections from the
English government. The same was true of the North
Carolina laws during the proprietary regime. After the
Carolinas had become royal provinces, however, many of
the proprietary acts remaining in force were disallowed/
When, as was the case in Maryland, Carolina and New Jer-
sey, the proprietors after relinquishing their rights of gov-
ernment retained property interests in the colony, they often
continued to exert considerable influence upon the fate of
legislation at the Board of Trade. The proprietors of
South Carolina were consulted in regard to an act for the
sale of the governor's mansion, and several acts of Mary-
land were disallowed at the instigation of Lord Baltimore,
because they were prejudicial to his revenue or property.*
The Georgia charter of 1732 granted to a corporation
for twenty-one years a power to make laws not repugnant
to those of England. Acts were to be submitted to the
Privy Council and to be in force only after receiving its
approval.^ Accordingly the trustees from time to time sub-
mitted proposed enactments, together with petitions or
statements setting forth their reasons for desiring confir-
mation. The trustees not infrequently were represented at
the Board by their secretary, or by some of their members,
and upon several occasions by counsel and solicitor. In
^ Among the acts of North Carolina annulled by the Privy Council
were : " For Biennial Assemblies," "Attornies from Foreign Parts,"
"Disposal of Goods on Execution," "Disputes regarding Lands,"
" Regulating Abuses regarding Lands," " Escheats and Escheators," and
"The Public Treasurer to Give Account," all of which were passed
in 1715. An act to "Encourage the Settlement of South Carolina,"
passed in December 1696, was disallowed April 3, 1734.
=•5. T. /., vol. xxxiii, p. 68; March 1724, A. P. C, vol. ii, p. 235-
B. T. J., vol. XV, p. 402; I February 1703. B. T. I., vol. xx, pp. 302,
313, 314; November 1708.
• Macdonald, Select Charters, pp. 241-243 ; June 1732.
517] PROCEDURE IN REVIEW 9^
1750 they conceded to the freemen of the colony an assem-
bly "with power to consider and propose . . . what laws
they might think beneficial to the welfare of the Province."
At its first meeting this body requested the privilege of
making " Bye Laws, to be in force till the Trustees should
disapprove thereof " — a power which " had been found
necessary elsewhere." ^ But the trustees thought it too
early to grant the favor, and the first acts of a Georgia
assembly did not reach the Board imtil 1755, after the
colony had became a royal province.
For a time Penn, like the other proprietors, exercised a
veto upon acts approved by his governor.* But in 1705
Attorney General Northey, in answer to queries from the
Board, g^ve an opinion that under the terms of the Penn-
sylvania charter Penn or his deputy could accept or reject
laws where the assembly sat, and not elsewhere; and that
Penn's instructions to the governor, saving to himself and
heirs a final assent, were void and of no avail.* Thence-
forth the proprietors possessed no check upon legislation
save by instructions to the governors or by appeals to the
crown. Because of the constant encroachments and in-
creasing prestige of the assembly, the former tended to be-
come less effective, while recourse to the latter became more
frequent.* In 1760, after the house had offered to indem-
^CO/s-671, pp. 221-224; 19 June 1752.
* In December 1699 Penn vetoed an act for " Preventing Frauds and
Regulating Abuses in Trade," "in consequence of one disagreeable
clause." C. S. P., 1697-8, p. 578. The Privy Council, nevertheless,
proceeded to disallow the act because "his simple disallowance" was
not " sufficient for the discountancing of such like attempts for the
future." CO/S-1288, p. 20.
•Report, CO/5-1263, N, 48; 19 October 1705.
* Petition in behalf of the widow of Penn, for the disallowance of an
act whereby fines and forfeitures were taken from the proprietors.
A. P. C, vol. ii, p. 771 ; 8 January 1720. A memorial desiring the repeal
of three acts. B. T. /., vol. xxxv, p. 134; 26 April 1726.
lOO REVIEW OF COLONIAL LEGISLATION [518
nify the governor in case the proprietors sued to recover
security upon his bond, the proprietors petitioned for the
disallowance of eleven acts which they considered highly
injurious to their political and landed interests. As a re-
sult, the Board recommended the annulment of several laws,
and administered a severe rebuke to the proprietors for
waiting until their property was endangered before pro-
testing against encroachments upon the prerogative of the
crown. ^
Until disabled by ill health in 1712, Penn took charge of
the Pennsylvania acts in England, seeing to it that they
were duly presented to the Council and the Board, and re-
ported upon by the law officers, and that they were consid-
ered in as favorable a light as possible. In short, he per-
formed all the duties of an agent, and because of his dis-
interestedness, prestige and wide acquaintance among offi-
cials he was far more influential than an agent designated
by the colony could have been. Penn's successors some-
times addressed the Board in writing regarding the confir-
mation or disallowance of acts. But their interests were in
the hands of solicitors, and they seem to have exercised
little personal influence there.
The charters of Massachusetts and Pennsylvania con-
tained provisions regarding the submission and confirmation
of laws which caused some variation in the procedure of
their review, and proved a considerable limitation upon the
veto power of the crown. Massachusetts was not obliged
to subniit laws to the Privy Council until one year, and
Pennsylvania until five years after their enactment. Acts
of the former, if not disallowed, were confirmed by lapse
of time three years after presentation, and those of the
latter six months after presentation. Thus the government
1 Representation, CO/5-1295, pp. 295-385; 21 March 1760. Root,
Relations of Penn with the British Government.
519] PROCEDURE IN REVIEW iqi
was forced to a decision upon their laws within a compara-
tively short time, and was prevented from allowing them to
lie by until the full effect of their operation could be ob-
served. In 1735 the Board resolved that all Massachusetts
acts should remain " two years ( from the time of their
being presented to the Crown) Probationary (unless ob-
jected to in the meantime) and then to report upon them." *
This was the longest possible period in view of delays in-
cident to their proper consideration, and the three-year
limitation.
In reply to queries from the Board, the law officers ruled
that the limitation upon the time allowed for review did
not begin until laws were presented to the Privy Council.*
Consequently acts delivered by the colony to the Board of
Trade could be considered there without regard to the time-
limit. In order to avoid the consequences of this decision,
the agents of Massachusetts and Pennsylvania delivered
laws, as a rule, to the clerk of the Privy Council, and the
Council, in turn, referred them to the Board of Trade. In
1746 the Board proposed that two objectionable acts of
Pennsylvania passed in 1722 and 1729 respectively should
be disallowed, upon the ground that they had been delivered
' B. T. /., vol. xliv, p. 151 ; 10 July, 1735. Acts and Resolves, vol. u, ix
790, note.
' Opinion of the king's counsel regarding the laws of Pennsylvania in
1719: ". . . the six months during which Pennsylvania laws are repeal-
able are to be counted from the time of their being delivered to the
Privy Council, unless agents of the Province deliver duplicates to the
Privy Council at the same time they are delivered to your Lordships.
The time during which they remain with your Lordships Can make no
part of the six months, but from the time delivered to the Privy Council
subsequent to your Lordship's report." B. T. I., vol. xxviii, pp. 167,
185 ; CO/s- 1265, O, 171 ; 24 March 1719. Chalmers, Opinions, pp. 336, 337.
In 1722 the attorney and solicitor rendered an opinion to the same
effect in regard to the laws of Massachusetts. B. T. J., vol. xxxi,
pp. 113, 116. CO/5-915, pp. 341, 342. Chalmers, Opinions, pp. 337, 338.
I02 REVIEW OF COLONIAL LEGISLATION [520
to the Board of Trade in the first instance, and had never
been laid before the Council. But the proprietors protested
against the establishment of such a precedent, and upon
their promise that the acts would be repealed by the assem-
bly, no further action was taken. ^
The needlessly long period allowed Pennsylvania for the
submission of her acts, together with the short time allotted
for their consideration, placed the government at a serious
disadvantage, and afforded the assembly and proprietors
considerable opportunity for neglect and evasion. Inertia,
and probably in some cases deliberate intent, caused the
proprietors to delay transmission, and then to submit the
accumulated enactments of four or five years. But if the
Privy Council and its subordinate officials moved at their
usual leisurely rate of procedure, six months was hardly
an adequate time for the consideration of so many laws.
In 1739 the Board made a strong protest to the proprietors
against this and other abuses, and the submission of Penn-
sylvania laws was accomplished with greater promptness
and regularity thereafter.*
The charters of Connecticut and Rhode Island, like that
^A. P. C, vol. iv, p. 21. Pa. Sts., vol. iii, p. 511. Root, Relations
of Pa. with the British Government, p. 135.
2 Representation, CO /S-1294, pp. 116-118; 2 February 1739. In strict
conformity with the original charter Pennsylvania laws should have
been disallowed under the Privy Seal. But as the result of an error
in copying the charter they were annulled, as were those of other
colonies, by orders in council. When the fact was brought to light in
connection with a judicial hearing upon the appeal of Hamilton v.
Richardson in 1733 the assembly, fearing action by Parliament, passed
a law which was intended to correct any informality or illegality in
the previous repeal of acts by orders in council. In spite of a report
from the king's counsel in connection with this act that "by the ex-
press terms of the Charter [Pennsylvania acts] must be declared void
under Privy Seal " — the use of orders in council continued as before.
CO/5-1268, S, 46; 13 January 1734. Root, Relations of Pa. with the
British Government, pp. 134, 135.
521] PROCEDURE IN REVIEW 103
of Maryland, did not require the submission of laws to the
crown. But to the recurrent insistence of the government
that they send home complete copies of their acts, both
colonies yielded a somewhat reluctant and dilatory compli-
ance.^ Apparently the Board of Trade never made any
very careful examination of these laws. Upon several
occasions collections of Connecticut acts were sent to the
king's counsel with the request for an opinion, " whether
some of them are not repugnant to the laws of this King-
dom." But his reports, made at considerable length, were
not read at the Board.* They show that many acts were
" repugnant " if measured by the standard of conformity
applied to those of the royal colonies. Yet in only three
instances were acts of Connecticut or Rhode Island dis-
allowed by virtue of the charter requirement that legisla-
tion be " not contrary, but as near as may be agreeable to
the laws of England." A Rhode Island law which estab-
lished a court of admiralty was annulled upon the opinion
of the attorney general that the charter conferred power to
erect courts only for trying matters arising within the
colony.* Upon complaint of the Quakers, a Connecticut
law against " Heriticks " was adjudged " contrary to the
Liberty of Conscience indulged to Dissenters by the law of
'Collections of Connecticut laws were transmitted in 1699, 1706, 1710,
1732, 1740 and 1752; of Rhode Island in 1699, 1700, 1710. Other col-
lections were perhaps sent, of whose receipt the journal makes no
mention.
'5. T. J., vol. xli, p. 104. CO/s-1271, V, 16; Fane on 133 acts of
Connecticut, 10 August 1733.
'The Board was in search of a pretext for annulling the Rhode
Island charter, and inquired whether putting the act in force would
not be a good cause for forfeiting it. The attorney replied that the
law was void, but that such action would not be warranted because the
act was only provisional until his majesty's pleasure could be further
known. CO/5-1262, M, 3. CO/s-1290, pp. 403, 413. A. P. C, vol.
ii, p. 852; 28 January 1704.
I04 REVIEW OF COLONIAL LEGISLATION [522
England, as likewise to the Charter " of that Colony/
And, finally, a Connecticut act of 1699 for the settlement
of intestate estates was declared void in connection with an
appellate decision in the famous case of Winthrop vs. Lech-
mere. That the government was alive to the desirability
of subjecting the legislation of these colonies to review by
the Privy Council is evident from the various attempts
made to annul the charters, and from resolutions offered in
the house of Lords, that the acts of all colonies should be
sent home within a year after passage, and that no law
should be in force till approved by the crown. ^
In a few instances the exercise of appellate jurisdiction
in cases from colonial courts involved a decision by the
Privy Council upon the validity of legislation. As a rule,
the act involved, together with petitions praying relief from
its operation, were referred by the committee for appeals
to the Board of Trade, and in accordance with their recom-
mendation the law was upheld or condemned. Thus an
appeal of Col. Bayard from a conviction of treason under
a New York act for "Quieting and Settling Disorders,"
was referred to the Board, together with papers from the
governor and council, copies of the act and the warrant for
commitment. After considering the Board's report, the
committee recommended that the governor be instructed to
secure the repeal of the clause under which the appellant
had been convicted and that sentence be reversed.^ The
most notable instance of an appeal to the king in Council
1 CO/5-1291, p. 210. CO/5-1263, N, 54- A. P. C, vol. ii, p. 832;
II October 1705.
2 CO/5-1291, p. 238; 23 January 1706. B. T. J., vol. xxiv, p. 4" 5 April
1734. Root, op. cit., p. 145.
' A. P. C, vol. ii, p. 413 ; 2 July 1702. B. T. I., vol. xiv, pp. 413, 428,
429, 430, 435, 453- C. S. P., 1702, p. 255, 267. " * the meaning of which
clause having been Misinterpreted to the Oppression of His Majesty's
subjects."
523] PROCEDURE IN REVIEW 105
involving the validity of a colonial law was the Connecticut
case of Winthrop vs. Lechmere, The respondent relied
upon a law of 1699 under the terms of which the real
estate of an intestate was to be divided equally among the
children, except that a double portion was to be allotted the
eldest son. The appellant contended that this act was in-
valid because repugnant to the English common law, which
made the eldest son sole heir. By an order in council of
February 15, 1728, the Connecticut law was declared in-
valid and the appellant given the whole estate.* This is
probably the only case in which a colonial law was de-
clared invalid without a reference to the Board of Trade.*
Had Lechmere's counsel or the agent for Connecticut peti-
tioned to be heard in defense of the act, the matter, no
doubt, would have been referred to the Board and there
considered upon other than strictly legal grounds. That no
action was taken by the agent was perhaps due to the con-
sistent reluctance of Connecticut to acquiesce in the review
of her laws by the home government. After the act had
been declared void the ag^ts petitioned to have previous
proceedings under it made valid. The matter was gone
into at length before the Board, and a report rendered upon
which no action was taken.' In 1738 the case of Phillips
'Dickerson, Am. Col. Govt., pp. 275-277. Hazeltine, "Appeals from
Col. Courts," Am. Hist. Rv., 1894, pp. 319, 320. For an able discussion
of the matter from another point of view sec, Schleslnger, " Colonial
Appeals to the Privy Council," Pol. Set. Quart., vol. xxviii, pp. 440-446.
Andrews, " The Influence of Colonial Conditions as Illustrated by
the Connecticut Intestacy Law," in Select Essays in Anglo American
Legal History, vol. i, pp. 431-463.
' " It was declared void at once, without any "Reference to the Board
of Trade, a thing that was never done in any other case, before or since,
to ray knowledge," Paris to Allen, 26 July 1738, Conn. Hist. Coll.,
vol. V, p. 81 ; Citd. by Dickerson, Col. Govt., p. 276.
*B. T. /., vol. xxxix, pp. 95, 96, 104, III, 209, 295, 299, 316, 323, 339.
Memorial of Winthrop contending for the invalidity of the act, CO/5-
1267 R, 109; 28 April 1730.
Io6 REVIEW OF COLONIAL LEGISLATION [524
VS. Savage called in question the validity of a similar act
of Massachusetts. But here the law, together with several
acts additional thereto, had been confirmed by lapse of time
under the terms of the provincial charter. Its validity was
consequently upheld and the appeal dismissed, a result dia-
metrically opposite from that attained in Winthrop vs.
Lechmere/ Several years later, when Samuel Clark, of
Connecticut, appealed to vindicate a claim at common law
to lands settled upon one Tousley according to the laws of
the colony, the appeal was dismissed, and the validity of
the act of 1699 finally established.
The great number of " private " acts, affecting the legal
rights or the property of some particular person or group
of persons therein named, which were passed by the colonial
assemblies, led to the imposition of various restrictions upon
their enactment, transmission and review. It was insisted
that every such law should contain a " saving clause " pro-
tecting the rights of the crown and of all persons other
than those mentioned in the act.^ In 1719 the Board pro-
posed that no private act passed in America should be in
force " till confirmed here by His Majesty." This prohi-
bition had been incorporated in the instructions to the gov-
ernors of the Island colonies when, in 1723, at the sugges-
tion of the committee, it was made general and sent to all
colonies.' Moreover, governors were forbidden to approve
private acts affecting real property until proof had been
made before them in council that public notification of in-
^ Hazeltine, "Appeals from Col. Courts," Am. Hist. Rv., 1894, pp. 319,
320. Schlesinger, "Col. Appeals," Pol. Sci. Qitart., vol. xxviii, p. 442.
Acts and Resolves, vol. i, note, p. 667.
2 CO/s-1271, V, 13. A^. Y. Col. Docs., vol. v, p. 126; 27 December 1709.
In 1718 the Board resolved that " such private acts as shall in the
future be transmitted without said clauses, will be laid before His
Majesty for disapprobation." B. T. J., vol. xxviii, p. 35.
* B. T. I., vol. XX, pp. 260, 267. A. P. C, vol. iii, p. 42 ; 27 June 1723.
525] PROCEDURE IN REVIEW 107
troduction into the assembly had been given for three suc-
cessive Sundays in the several parish churches where the
premises in question were situated.^
Governors transmitted private laws " under Separate
Seals, Separate and distinct " from those that were public ;
and in England further safeguards restricted their progress.
Although the Board referred public acts to the law officers
as a matter of course, it did not, as a rule, so refer those of
a private nature until some one appeared to stand sponsor
for them. Time and again the Board urged upon gover-
nors the absolute necessity of having some one — ^not neces-
sarily the colonial agent — appointed to give information
upon every private bill and to pay the required fees in the
various offices.' After having secured a law report, it was
necessary for the person in charge of a private law to wait
upon the secretary of the Board and urge him to move for
a favorable report upon it. In 1727 it became the settled
policy to leave all private acts against which there seemed
to be no objection probationary for six months after their
* Instruction to all governors. B. T. J., vol. xlii, pp. 95, 96 ; ap June
^723- The form of notification used in Virgfinia follows : " Notice is
hereby given that the subscriber does intend to petition the next As-
sembly that an act may pass empowering me to dispose of my Estates
in the same manner as if I had never been married, that any
person who hath anything to object may appear." CO/5-132S, V, 31.
Governors were required to transmit with private acts certificates show-
ing that these precautions had been duly observed.
* " If there be nobody here to follow such [private] acts they [the
attorney and solicitor] will not report upon them, and frequently upon
the Removal of Attomies or Solicitors said acts are liable to be lost."
Board to Hunter, CO/5-99S, p. 327; 22 March 1716. "Some persons
should be appointed here to solicit the dispatch of this and all other
private acts, and to pay the fees in the several offices, * " CO/S-915,
p. 20; 4 June 1 7 19. CO/5-915. P- 276. CO/5-726, p. 99. CO/S-1360,
p. 24. A general instruction was issued to the same effect, 8 July 1720.
B. T. J., vol. xxix, p. 246.
Io8 REVIEW OF COLONIAL LEGISLATION [526
consideration at the Board/ If during the period of pro-
bation no objection was raised against them, a representa-
tion was signed, stating that they had passed through all
the forms prescribed by instructions, that they contained a
suspending clause, had met with no objection from the law
officer or from parties concerned in their operation, and
were fit to be confirmed.^
The requirement that private acts contain a suspending
clause was never acquiesced in by Pennsylvania or Massa-
chusetts because of the charter provisions that laws, unless
disallowed, should be in force from the time of enactment.
Massachusetts, which had passed forty-seven private laws
prior to 1724, when the governors were instructed to insist
upon the inclusion of a suspending clause, enacted none
during the twenty years following. After 1743 she sub-
mitted seventeen private acts, most of which were dis-
allowed for want of the required clause. New Hampshire
was also negligent in this respect. Virginia and other
southern colonies, however, made extensive use of private
laws to dock entails upon lands, and generally complied
with all the required forms.
^ A New York act was ordered to lie by for six months, and " if
during that time no objections shall be made thereto, their Lordships
would represent the same to His Majesty as proper to be confirmed,
and that the same method shall be observed in respect to all private
acts for the future." B. T. /., vol. xxxv, p. 8; 12 January 1727. In
view of the charter limitation it was scarcely practical to subject Penn-
sylvania laws to this delay. CO/5-1294, p. 84. But that colony passed
comparatively few private acts.
' Favorable representations upon such acts approached a formula.
Representation upon thirteen acts of Virginia, CO/s-1366, pp. 103, 107;
29 June 1733-
CHAPTER IV
The Policy of the British Government in Legisla-
tive Review : Trade, Shipping and Finance
The British government, by means of colonial charters,
and commissions and instructions to the governors, im-
posed various restrictions upon the law-making power of
the assemblies. But upon no occasion did it formulate a
positive or comprehensive statement of its policy in regard
to colonial legislation. Summarized in a general way, the
documents mentioned above yield a series of negations.
Laws were to be not repugnant to those of England, not
inimical to the acts of Parliament regarding colonial trade
or to the commercial policy of the British Empire, and not
detrimental to the royal prerogative. The varied interests
by which the government consciously or unconsciously was
influenced, and the general principles by which it was
guided, are revealed more plainly in the many " opinions
in point of law," Board representations, committee reports
and orders in council. These show that under normal
conditions each individual law was scrutinized not only for
violations of the instructions, but also with a view to its
probable expediency for the colony and the Empire, pos-
sible injury to other colonies, and unseemly infringements
upon rights to private property or individual liberty.
There was no conscious cleavage between the political
and economic aspects of the government's policy toward
legislation. In their larger sense the terms " conformity "
and " repugnant " included breaches of the acts of trade,
as well as cases of divergence from the common law. Rev-
527] ^09
no REVIEW OF COLONIAL LEGISLATION [528
enue acts were regarded with a double concern — their prob-
able effect ufK)n British trade and shipping, and the estab-
lishment of adequate salaries for royal appointees. Unless
properly susbservient to the crown, the contribution of the
colonies to the economic well-being of the Empire was un-
certain and of little value. It is difficult to say, therefore,
whether the government gave to the one or the other the
greater emphasis in its treatment of colonial legislation.
Issues raised by questions of taxation and revenue, which
affected the interests of the merchants, were brought to the
attention of the Board in a particularly speedy and insistent
fashion. Moreover, they were more clear-cut and suscep-
tible to settlement by anticipatory instructions than were
those growing out of encroachments upon the prerogative.
The fact that the colonists learned, in a large measure, to
acquiesce in a consistent policy regarding matters of trade,
while the assemblies, responsive to popular sentiment and
strong in their control over appropriations, continued to
encroach upon the " twilight zone " which lay beyond their
proper field of legislation, explains, at least in part, why
the economic aspect appears to have been the more promi-
nent prior to 1750 or 1760, and why the emphasis was
perhaps political thereafter.
In so far as the government's economic policy toward
the colonies rested upon theory, its cardinal point was the
idea of a self-sustaining empire, in which the colonies
should be useful primarily to furnish raw commodities, and
to consume the products of British manufactures. Com-
mercial restrictions, it was claimed, were intended not to
benefit the mother country at the expense of the colonies or
vice versa, but to work for the economic stability and in-
tegrity of the Empire as a whole. Commercial relations-
between the two were to be reciprocally beneficial. The
attitude of the Board of Trade toward colonial enactments
529] POLICY IN REVIEW 1 1 1
regarding matters of trade, shipping and finance was de-
termined, in a large measure, by this conception of an eco-
nomically self-sufficient empire.
At first the colonies were allowed to levy imposts upon
English goods, provided that such acts contained a sus-
pending clause and were calculated to furnish necessary
revenue without adversely affecting the trade and shipping
of Great Britain.^ In 1718, however, the proprietors of
North Carolina were ordered to veto an act laying a duty
of ten per cent upon all goods of British manufacture im-
ported, and to direct the governor not to assent to its like
in the future.^ Following the enactment of a three per cent
impost without the required suspension by the Leeward
Islands, and a New York act levying two per cent, the gov-
ernment, at the instigation of the merchants, issued g^eral
instructions forbidding the governors' assent to any law
laying a duty upon European goods imported in English
vessels.*
This prohibition was strictly enforced, even when the
colonists attempted to attain their result in an indirect man-
ner. The Council, for example, disallowed a Massachusetts
excise which was payable by the retailer, upon the ground
that it would lessen the value of goods imported and so
affect the trade of Great Britain.* Objection was raised to
a North Carolina act subjecting pedlars to an impost of ten
per cent upon the sworn value of their goods, because "the
tax seemed calculated to discourage, if not Prohibit, the
free Circulation of petty Trade and Traffic " and to be
* Board to Hunter, N. Y. Col. Docs., voL v, p. 501. Board to Shute,
Acts and Resolves, vol. ii, p. 69; 4 June, 1719.
» A. P. C, vol. ii, p. 740.
» A. P. C, vol. iii, p. 40; 6 October, 1722. CO/S-1124, p. 238.
* Acts and Resolves, vol. iii, pp. 495, 508.
112 REVIEW OF COLONIAL LEGISLATION [530
" restrictive ufK>n Trade [and] the dispersion, of British
manufactures throughout the Continent." ^ The Council
instructed Massachusetts to amend an act which laid a
double impost upon goods imported by inhabitants of other
colonies, so that British goods would not be subject to
duties as upon foreign commodities. Because of a Georgia
law which was intended to lay an equal assessment upon
property of every kind, the governor was directed to see
that similar acts in the future should clearly express the
tax " to be ad valorem upon stock in trade and not upon
goods and merchandise imported." ^
In regard to export duties the government was more
liberal. The colonies appear to have used them quite ex-
tensively for purposes of revenue. But they were not coun-
tenanced if unreasonable, if adverse to the interests of
British manufacturers in that their operation served to
raise the price of raw materials, or if so levied as to nullify
bounties paid by the English government upon colonial
products. Thus, the Council disallowed a Georgia law
which imposed an export duty upon raw hides, because by
its operation " an article of general use and importance to
the manufacturers of this Kingdom would be enhanced in
price." The act " could not but be prejudicial to the in-
terests of the Mother Country and tends to give a prefer-
ence to the manufactures of the Colony against [those] of
Great Britain." ^
In like manner the government made no objection to the
imposition of duties upon the importation of slaves and
convicts, provided the charges fixed were calculated to raise
a necessary revenue without placing a prohibitory burden
^ A. P. C, vol. V, p. 127.
* C'O/5-651, p. 381 ; 16 June, 1772. A similar case arose in 1774. A.
P. C, vol. V, p. 403.
» A. P. C. vol. V, p. 316; June, 1771.
53 1 ] POLICY IN REVIEW 113
upon the traffic. The amount of duty permitted upon
negroes seems to have depended largely upon the forbear-
ance of the Royal African Company and the English mer-
chants. Several acts of Virginia levying twenty shillings
sterling passed without notice; but a law of 1723 carrying
a duty of forty shillings, to which they objected, was
disallowed. Against this act the merchants urged that
lessening the number of negroes would increase the price
of labor and decrease the production of commodities, with
consequent injury to the customs and trade of Great Brit-
ain. The representation of the Board emphasized the prob-
ability that the act would discourage the production of naval
stores, especially in the two new counties where his majesty
had remitted the payment of quit rents for seven years in
order to encourage settlement. In recommending the dis-
allowance of a similar act passed in 1728, the king's counsel
carried the argument a step further by stating that a de-
crease of the tobacco crop caused by a scarcity of slaves
would lessen the purchasing power of the colony and
" amount to a duty upon the importation of British manu-
factures." ^ After considering several negro acts of Bar-
badoes. South Carolina, New York and Maryland in 1729,
the Board instructed the governors to procure laws substi-
tuting other duties in lieu of those upon slaves, inasmuch
as they "do in some measure enhance the price of Labour,
and consequently [that] of several commodities produced
in the Plantations wherein our neighbors rival us in for-
eign markets." ' The number of acts imposing negro duties
which were subsequently disallowed shows, however, that
this manner of raising money was popular with the assem-
> CO/5-1319, O, 49; 5 December. 1723- CO/5-1365. P 269. CO/S-
1366, p. 28. CO/5-1321, p. 28.
• B, r. J., vol. xxxviii, pp. 246, 262 ; October, 1729.
114 REVIEW OF COLONIAL LEGISLATION [532
blies, and that there existed, as well, considerable sentiment
in favor of restricting the importation of blacks. Indeed,
Virginia went so far as to declare that this impost was the
only one which without oppression could be laid upon the
imports or exports of the colony/
For the protection of slave dealers, the government in-
sisted that no duty be laid upon negroes brought into a
colony and re-exported within one year,^ and that all duties
be payable by the purchaser rather than by the importer.
When levied upon the latter, he was often obliged to hold
the negroes at great expense on shipboard pending their
sale. The expedient of placing the duty upon the purchaser,
which was adopted at the suggestion of the merchants,
lessened the outlay and consequent risk to be borne by the
dealer, and was at first thought to be of less burden upon
the trade. In 1770, however, the king's counsel pointed out
that the distinction between dues paid by the importer and
the purchaser was largely fallacious, since " all such duties
must in the end be paid by the purchaser, raise the price
and thereby lessen the demand." ^
Alleging that transported convicts committed numerous
crimes and caused the local governments great expense, sev-
eral colonies sought to lessen the number sent over from
England. Toward laws aimed to accomplish this object by
the imposition of duties, the attitude of the English gov-
* An early act of South Carolina which imposed a duty of ten pounds
was ordered " to be repealed ". B. T. J., vol. xxxix, p. 72. CO/5-361,
C, 79. Acts of Virginia which levied as high a duty as 25 per cent
were disallowed in 1768 and 1770. A. P. C, vol. v, pp. 164, 286. A
law of Pennsylvania was disallowed in 1773. A. P. C, vol. v, p. 398.
Other acts were ordered to be amended, or allowed to lie by. B. T. /.,.
vol. xl, p. 217. A. P. C, vol. iii, pp. 422, 393. A. P. C, vol. v, p. 362.
« CO/S-1128, p. 139; 5 July, 1753.
' B. T. J., vol. xxxix, p. 72. B. T. J., vol. xl, p. 217 ; 1723. CO/5-
1332, Aa, 79.
533] POLICY IN REVIEW 1 1 5
ernment was similar to that regarding duties upon slaves.
To a reasonable tax for revenue it offered no objection;
but several acts it disallowed because their provisions would
have placed a prohibitive burden upon the traffic. The
policy of the government, however, was in this case more
firm and consistent because such laws came into conflict
with acts of Parliament providing for the transportation
of convicted felons. Complaining that the difficulties im-
posed upon importers amounted " almost to a prohibition,"
the Council disallowed an act of Virginia which provided
that no convict should be sold or disposed of for a less
term than that for which he had been transported. For
the convict's good behavior, the law required one hundred
pounds security from the dealer and ten pounds from the
purchaser.^ For the same reason the Council insisted upon
the amendment of several Pennsylvania acts which levied
a duty of five pounds upon each convict and required of the
importer fifty pounds security for good behavior."
In the interests of British shipping, the government
strongly objected to the practice of allowing exemptions
on imposts or tonnage dues to vessels owned by inhabitants
of the colonies. A Virginia law of 1684 was annulled in
part because it contained an exemption in favor of local
shipping.* The Board complained that a Massachusetts
' " Amending the act regarding Servants and Slaves, and the better
Government of Convicts," A. P. C, vol. iii, p. 54; Disallowed 6 Au-
gust, 1723. This law was brought to the Board's attention by a con-
tractor for transporting convicts. CO/5-1319, Q, 36. CO/5-1365, p.
252. CO/s- 1 3 19- Q. 37-
* The original act to which tl^e others were supplementary was
passed in 1738 and confirmed by lapse of time. Pa. Stats., vol. iii, p.
501 ; vol. iv, p. 467. A similar law passed in 1742 was disallowed in
1746. A. P. C, vol. iv, p. 20. An act of New Jersey was annulled in
1732. CO/5-972, E, 70. A. P. C, vol. iv, p. 140. CO/5-1278, Z, 8.
» Hening, vol. iii, pp. 23, 38. Beer, Old Col. System, vol. i, p. 208.
Il6 REVIEW OF COLONIAL LEGISLATION [534
act which exempted sloops and other vessels under twelve
tons made " the duty lie singly upon ships belonging to
England." ^ A Virginia law of 1730 granted vessels be-
longing solely to Virginians a reduction of fifty per cent in
an impost upon liquors. This was disallowed upon a com-
plaint from the merchants that it was " a very partial stip-
ulation to the inhabitants of that Colony " and " manifestly
designed to encourage their trade and navigation in oppo-
sition to that of Great Britain." ^ Shortly after the gover-
nors were forbidden to pass any law whereby colonial in-
habitants were put on a more advantageous footing than
those of Great Britain; and as a result of the enactment
of a South Carolina law which contained exemptions par-
tial to local shipping, they were commanded more explicitly
in 1755 to allow " no greater duties upon ships and goods
of non-residents than upon natives of the Province." ^
The British government conceded to each colony a right
of supervision over the Indian trade within its own borders.
But it insisted that such control be so exercised as to fur-
ther the economic interests of the Empire as a whole, by
enforcing order and preventing frauds and abuses, without
injuring the trade of neighboring colonies or imposing un-
due restraint upon the distribution and consumption of
British manufactured articles. Otherwise, the government
feared, prices would increase and the Indians would turn
for trade to the French and Spanish.* It was insisted, also,
that such regulation should not constitute a monopoly,
either by granting exclusive rights to a company of traders,
or to inhabitants of the colony, or by vesting arbitrary
» CO/5-909, p. 281.
» CO/5-1366, p. 75-
' /}. P. C, vol. Hi, p. 348; 27 January, 1732. N. H. St. Pap., vol.
xviii, p. 45. CO/5-403, p. 41.
* A. P. C, vol. ii, p. 610; 26 September, 1709.
535] POLICY IN REVIEW I17
powers in a local commission. All British subjects, the
Board declared, were free under English law and the acts
of Parliament to avail themselves of a share in the planta-
tion trade with his majesty's allies.^ A Virginia act was
disallowed in 1767, for example, because the powers
granted to trustees did " in effect institute a monopoly."
Such restrictions, said the Board, " we consider destructive
of that general freedom of Trade and Traffic which both
by the Law of this country and the policy of all commer-
cial nations is and ought to be accessible to every indi-
vidual." '
In like manner the government pennitted colonies to
regulate the cultivation and shipment of tobacco, provided
that in doing so they caused no undue inconvenience to
English shipping or marked decrease in the revenue of Great
Britain. For the convenience of shippers, the Board pre-
vailed upon Maryland to reduce the size of the tobacco
hogshead prescribed by law, to conform with that adopted
by Virginia, and to decrease the penalty for defacing or
breaking open the casks.' At the instigation of the mer-
chants a Virginia law to " Prevent Frauds in the Tobacco
Trade " was disallowed because the taxes and restrictions
imposed were "a burden and a clogg to the trade." * Later,
however, both the merchants and the Board conceded the
' Report of the solicitor upon an act of Virginia which granted ex-
clusive privileges to a local company. CO/5-1364, p. 463; 21 June,
1717. A. P. C, vol. ii, p. 721.
* A. P. C, vol. V, p. 36. The king's counsel expressed a similar
opinion in connection with an act of South Carolina. CO/5-371, H.
55 ; October, 1722. Arbitrary powers vested in commissioners were
responsible in part for the disallowances of ten acts of New York in
December, 1729. A. P. C, vol. iii, p. 209.
' CO/5-727, p. 24s; 8 May, 1711.
* CO/5-1364, pp. 463, 474. A. P. C, vol. ii, p. 721 ; June, 1717.
Il8 REVIEW OF COLONIAL LEGISLATION [^36
necessity of strict supervision over the marketing and ship-
ment of tobacco, and a law passed in 1730 for "Amending
the Staple of Tobacco," which provided that the weight of
each hogshead should be stamped thereon by an inspector,
and that unmerchantable tobacco should be destroyed, re-
mained in force/
Since the continental colonies were supposed to benefit
the mother country and to contribute to the well-being of
the Empire chiefly by their consumption of British manu-
factured articles, it was inevitable that the government
should discourage all colonial enterprise which might com-
pete with home industries. Otherwise, it was feared, the
colonies would become more and more self-sustaining, with
consequent loss to British shipping, decrease of imperial
revenue and injury to English manufactures. To keep the
American market open to British enterprise, acts of Par-
liament forbade intercolonial trade in woolen goods and
hats, and the manufacture of iron ware. By its commis-
sion, the Board was directed to consider means whereby
the colonies could be prevented from furnishing themselves
or other colonies with what could be supplied from the
mother country; and the governors had strict instructions
against assenting to any laws encouraging the establishment
of manufactures which might compete with those of Eng-
land.^ Largely as a result of the government's determined
attitude in the matter, comparatively few laws for this
purpose were enacted in the Plantations. In passing upon
^ The commissioners of the customs urged that the act would de-
crease the king's revenue and should be disallowed. The merchants
petitioned against its confirmaticn, but did not press their case, and it
was allowed to lie by at the earnest solicitation of Governor Gooch.
CO/5-1322, R, 126, R, 152, R, 135, R, 141, R, 142. CO/5-1366, p. 61.
A. P. C, vol. iii, p. 326; I July, 1731.
« CO/5-918, p. 295. A. P. C. vol. iv, p. 482.
537] POLICY IN REVIEW ng
an act of South Carolina to " encourage the making of
flax, linnen and thread," the Board commended a bounty
upon the production of flax. But, continued the report,
" there is also thirty pounds for every hundred weight of
linnen made in the Colony, which being a manufacture of
this Kingdom . . . the Establishment of it in the Colonies
ought ... to be discouraged." ^ An act of Virginia allow-
ing a drawback of export duties upon dressed hides was
disallowed as "an express and avowed Act for the promo-
tion and management of a Manufacture as an article of Ex-
portation and Commerce. Every such attempt ought in
policy and Reason to be discouraged and suppressed." '
Indeed, the argument that a particular line of action
would work to the advancement of colonial manufactures
never failed to command attention at the Board of Trade,
and it was used frequently both by colonists and the mer-
chants with telling effect. By a clever stroke the support-
ers of the long-contested Connecticut intestate law urged
that if the English rule which gave all real estate to the
eldest son was forced upon the colony, the younger sons
would be driven from agriculture, and from sheer necessity
would turn to trade and manufacturing.' The Council for-
bade Virginia to close her ports to the trade of North Caro-
lina lest the inhabitants of the latter community be forced
to adopt a similar course.* With this motive the Board
also discouraged the establishment of ports and towns in
Maryland and Virginia. At the instigation of the mer-
chants, and with the concurrence of the commissioners of
• A. P. C, vol. V, p. 320; 15 January, 1772.
" A. P. C, vol. V, p. 37; 26 June, 1767.
• Select Essays in Anglo American Legal History, vol. i. pp. 431-
463. An essay by Andrews upon the " Influence of Colonial Conditions
as Illustrated by the Conn. Intestacy Law."
• A. P. C, vol. iii, p. 346 ; 25 November, 1731.
I20 REVIEW OF COLONIAL LEGISLATION [538
the customs, the governors of these colonies were urged to
secure the designation of certain ports exclusive of others
for the lading and unlading of ships. But the assemblies,
with a largeness of vision characteristic of frontier com-
munities, went further than either the Board or the cus-
toms desired, by setting up incorporated towns as well as
ports, and granting extensive privileges to their inhabitants.
It was feared that the growth of towns would cause the
inhabitants to take up manufacturing and neglect tobacco
raising to the consequent detriment of British shipping,
revenue and industry, and the laws passed by both colonies
were disallowed.^
No other question within the realm of trade and finance
caused the English authorities greater perplexity or affected
the economic interests of the colonists in a more vital fash-
ion than did the issue of paper currency. The traditions
of the British government furnished no sanction for fiat
money, while the merchants and other creditors clamored
to be relieved from losses caused by unnecessary deprecia-
tion. Upon the other hand, the colonies were permitted
neither to establish mints for making their own coins, nor
to regulate shipping and commerce in such a manner as to
obtain for themselves a favorable balance of trade, and so
prevent the further exportation of such coin as they pos-
sessed to England. Letters from the governors dwelt con-
tinually upon the lack of currency in the colonies, and the
necessity for securing some constant and recognized me-
dium of exchange for commercial transactions and the pay-
ment of taxes. Consequently the government conceded
with reluctance that a reasonable amount of paper currency
with ample provision for its refunding might prove a benefit
rather than a detriment to trade, and spent its efforts
^ CO/5-1362, p. 432; 18 November 1709.
539] POLICY IN REVIEW — 12 1
chiefly in attempting to secure a proper regulation of the
bills issued. To safeguard the interests of creditors and
protect the colonies from the evil effects of depreciation,
the Board came gradually to insist: (i) that the amount
of bills issued be limited to the minimum which would
serve the legitimate needs of the colony for a circulating
medium, (2) that ample provision be made for refunding
and that such provision be strictly observed, (3) that the
bills be of definite and limited duration and that they be not
re-issued, and (4) that they should not be made legal ten-
der for the payment of debts or taxes.
The fact that bills once issued and placed in the hands
of private individuals could not be recalled or annulled with-
out creating confusion in the provincial finances and bring-
ing great hardship upon innocent holders, saved many laws
for the issue of paper currency from disallowance, and
caused the Board to insist that acts for this purpose contain
a suspending clause.* This check proved only fairly effec-
tive, and during the third and fourth intercolonial wars the
Board admitted that unforeseen circumstances might arise
which would necessitate an immediate supply, and make it
inadvisable for the governor to insist upon a suspending
clause. Of this concession the colonies were not slow to
take advantage.^
* ^.'0/5-996, p. 175 ; September, 1727. This instruction was based
upon that already issued to the governor of Jamaica. To facilitate the
collection of necessary revenue, Massachusetts and New Hampshire
were allowed to issue each year an amount sufficient to pay the running
expenses of the government. CO/5-916, p. 269. N. H. St. Pap., vol.
xviii, p. 25.
• The Board to Shirley, CO/5-gi8, p. 135; 28 August. 1744. A. P. C,
vol. iii, p. 706; 30 June, 1743. In 1758 permission was gfiven the gov-
ernor of New Jersey to issue bills without the suspending clause " in
case of emergency for military purposes." A. P. C, vol. iv, p. 372.
CO/5-998, p. 257.
122 REVIEW OF COLONIAL LEGISLATION [540
The forcing of provincial bills as legal tender upon Eng-
lish merchants, even at a rate of exchange which allowed
for their depreciation, was, in the eyes of the Board, " an
intolerable hardship." ^ Although it had discountenanced
legal tender provisions from the first, the government took
no decisive stand in the matter until in 1751 some inhabi-
tants of Rhode Island petitioned the crown to restrain the
further emission of paper currency in that colony. Because
Rhode Island acts, unless contrary to the charter or re-
pugnant to the laws of England, were not subject to dis-
allowance by the Privy Council, Parliament intervened and
passed an act " To regulate and restrain Paper Bills of
Credit in Rhode Island, Connecticut, Massachusetts and
New Hampshire, and to prevent the same being legal ten-
der in payment of money." This act forbade the enact-
ment of any law postponing the time set for calling in bills
already subsisting, or whereby any of them should be de-
preciated in value, or re-issued or obtain further currency.^
For a time the Board endeavored to compel all the colo-
nies to comply with this act. But under the strong neces-
sity of war, this resolution also broke down. Against a
law of Virginia passed in July, 1755, which provided for
the re-issue of twenty thousand pounds of paper currency
which was to " be legal tender for a limited time," no ob-
jection was made.' And it was so hard to obtain grants
of supplies from Pennsylvania that the government per-
mitted the confirmation of acts which violated all instruc-
tions to the governors regarding the emission of bills.
' CO/ 5-1121, p. 460; 29 November, 1709.
^ B. T. J., vol. Iviii, pp. 13, 32, 27, 38, 39; 25 June, 1751. Board to
Wentworth, CO/5-941, p. 297. Pickering, Stats, at Large, 1751, chapter
S3.
» CO/5-1329, X, 24.
541 ] POLICY IN REVIEW 123
Thus, ill 1757, an act which made thirty thousand pounds
legal tender for ten years, and contained no suspending
clause, was confirmed because "of the great exigencies of
the present conjuncture, when supplies are so absolutely
necessary for Your Majesty's service." ^ And in the year
following, two acts for the emission of sixty and fifty-five
thousand pounds to be legal tender were allowed because,
the bills having been issued and circulated, the repeal of
the laws would cause the greatest confusion.* In like man-
ner an act of Georgia was confirmed despite the fact that
the bills were to be legal tender for all debts between people
within the Province, and to be current for seven years.*
In 1764 the Board conferred with the various colonial
agents regarding the state of the paper currency in America,
and it was agreed " on all hands, that putting a stop by act
of Parliament to all further emission as legal tender, de-
claring all bills now existing not legal tender after periods
fixed for Redemption, and fixing a period for legality of
tender for those having no fixed period, would be highly
expedient and proper." * The agents asked in vain that
the matter be delayed until they could consult their constit-
uents. On March 9, 1764, the Board submitted to Parlia-
ment an elaborate report upon paper money in the colonies.
While disclaiming any intention of conveying censure upon
particular colonies, the Board stated in conclusion that
"complaints lately made by Merchants of the principal trad-
ing cities of Great Britain of the prejudice they have sus-
tained ... do call for that redress from Parliament, which
. . . the Crown has in vain endeavored to obtain for them
» A. P. C, vol. iv, p. 347 ; 8 July, I757-
• A. P. C, vol. iv, p. 341 ; 16 June, 1758. CO/5-1295, p. 248.
• CO/5-674, p. 198 ; 23 June, 1761.
• B. T. J., vol. Ixxi, pp. 57, 58, 60 ; 2 February, 1764.
124 REVIEW OF COLONIAL LEGISLATION [542
by its own authority." ^ In accordance with this recom-
mendation, Parliament passed an act which declared all
laws making bills legal tender, or prolonging the legal ten-
der of bills already issued, to be void after September i,
1764.^ This act was strictly enforced against all the colo-
nies, and effectively deprived the paper currency there of
its worst feature.
In dealing with the problem of paper money the Board
found itself placed squarely between two opposing sets of
interests, those of the debtor class predominant in the colony
and its assembly, and those of the British merchants. The
latter sought redress many times from adverse financial
legislation, in the great majority of cases with success. In
spite of the losses they sustained because of paper money,
however, the merchants conceded the necessity of its use
and made no stand for its abolition. Their complaints
were directed in almost every case against legal-tender pro-
visions, or else against inadequate measures for refunding
and the consequent depreciation of the bills. In several
cases the merchants even exerted their influence upon the
Board in favor of an issue under proper restrictions. In
1730 they requested that the governor of South Carolina
be allowed to re-issue one hundred thousand pounds for
seven years, applying the proceeds to the encouragement
of new settlers.^ They approved an issue of sixty thousand
pounds under stringent regulations in Massachusetts ; and
urged the confirmation of three acts from New Hampshire
because the whole sum to be emitted would not be more
than was " absolutely necessary to carry on the trade and
business of the Colony," and because such an emission
* A. P. C, vol. iv, Preface xix.
2 Statutes at Large, 1764, chapter 34.
3 CO/5-361, C, 63, C. 64; 4 February, 1730.
543] POLICY IN REVIEW ^^ 125
would be the best means to prevent the use of the base cur-
rency of neighboring colonies as a medium of trade there/
Like the merchants, the Board regarded paper currency
with dislike and apprehension, as a necessary evil of which
the best must be made. They felt the colonists to be mis-
taken in their expectation that bills of credit would prove
an economic panacea, and believed that in permitting their
issue only under stringent restrictions and careful regula-
tions, they were advancing the true interests not only of
British traders, but of the colonies as well.
Conflict between the interests of English merchant cred-
itors and of colonial debtors resulted also from the enact-
ment of laws which regulated and sometimes impeded the
collection of debts. In this case the Board of Trade, always
solicitous for the security of private property and mindful
that a sound credit was requisite as a basis for the planta-
tion trade, regarded the creditor's right of recovery as axio-
matic, and conceded very little to colonial sentiment. Mas-
sachusetts in 1757, and Virginia in 1762, passed elaborate
bankruptcy acts which allowed debtors, voluntarily confess-
ing themselves insolvent and surrendering their assets, ex-
emption from imprisonment and a certain percentage of
the proceeds from the disposal of their property. The
Board acknowledged the beneficial intent and inherent jus-
tice of these laws, but insisted, nevertheless, upon their
disallowance because of fear that their operation by colo-
nials would surely work injustice to absent English cred-
itors. " Upon the whole." says the Board's representation
upon the Massachusetts act, " a bankrupt law, even though
just and equitable in abstract principle, has always been
found in its execution to afford opportunities for fraudu-
*C'0/S-9I7, p. 259; II April, 1739. CO/S-92S, A, 11; 26 November,
1742. The merchants took a similar position regarding two acts of
Pennsylvania. B. T. J., vol. xlviii, p. 26; 18 March, 1740.
126 REVIEW OF COLONIAL LEGISLATION [544
lent practice. And even in this country where in most
cases all creditors are resident on the spot, it may well be
doubted whether the fair trader does not receive more
detriment than benefit from such a law. But in a Colony
where not above one tenth of the Creditors are resident,
and where that small proportion of the whole, both in
money and in value, might (as under this act), upon a
commission being issued, get possession of the bankrupt's
effects and proceed to make a dividend before English
merchants could ever be informed of bankruptcy, such a
law is beneficial to a small part of the Creditors resident
only." '
Toward acts designed to relieve debtors who were already
charged in execution and suffering imprisonment, and who
chose to surrender their property for the benefit of cred-
itors, the Board was more tolerant ; and all of the colonies
passed such laws from time to time. It was insisted, how-
ever, that settlements be not concluded without the consent
of creditors holding at least the major part in value of the
claims presented, and that insolvents should not be granted
exemption from debts which they might contract in the
future.^ Several acts providing for the release of indi-
vidual debtors were disallowed because, in the opinion of
the Board, the process of liquidation was not surrounded
with adequate safeguards for protecting the interests of
creditors against fraud and concealment. In framing an
^ Regarding "Bankrupts and their Creditors." CO/s-430, p. i. A. P.
C, vol. iv, p. 388; Disallowed 28 July, 1758. Acts and Resolves, vol. iv,
p. 29. The Virginia law " For the Relief of Insolvent Debtors " was
disallowed July 20, 1763. A. P. C, vol. iv, p. 563. CO/5-1369, p. 234.
CO/S-1330, Y, 84, Y, 87. Hening, vol. vii, p. 549. The law of Vir-
ginia was more objectionable than that of Massachusetts in that it did
not permit debtors to be petitioned into involuntary bankruptcy.
'CO/S-379, P-37- CO/5-979, p. 45- CO/5-1295, p. 249. CO/s-1277,
Y, 3. A. P. C, vol. V, p. 311.
545] POLICY IN REVIEW "— 127
act of New Jersey, for example, the assembly neglected to
make the notification of all creditors obligatory upon the
trustees, and provided merely that the insolvent should lose
the benefit of the law if he secreted any part of his estate —
a penalty which the Board deemed " much too light and
trivial for an offence commonly enacted a felony." ^ In
like manner an act of St. Vincent was annulled because it
allowed two prisoners for debt full benefit of the English
bankruptcy laws, without subjecting them to the p>enalties
contained in those laws, in case they should not in good
faith comply with them.'^
Most of the objections made to debtor legislation had to
do with provisions which, under the guise of uniformity,
did in fact impose particular obstacles to a just recovery
by English creditors. Many acts discriminated against the
British merchants by so fixing the time for the final settle-
ment of insolvent estates that they were not allowed a suffi-
cient period for presenting and proving their claims. The
Virginia bankruptcy law of 1762 provided that the effects
of insolvents should be sold at auction within three months
after the assignment, and a final dividend declared within
eighteen months." An act passed by North Carolina in
1773 was disallowed because it allowed only sixty days
between the appointment of commissioners and the exam-
ination of creditors, and permitted no further delay for
absent persons : and a law of Antigua, which was annulled
"for the sake of precedent," though it had probably taken
effect, provided that the entire estates of two insolvents
should be applied in payment of executions already in the
' An act of New Jersey " For the Relief of Francis Goelet." CO/5-
999, p. 125 ; Disallowed 2 January, 1762.
• " Relief of John Earls and Robert Hunter," A. P. C, vol. v, p. 364;
7 April, 1773.
• CO/5-1369, p. 234.
128 REVIEW OF COLONIAL LEGISLATION [546
hands of the provost marshal.^ Some months notice of
distribution and eighteen months to make the distribution
in, the Board stated, would be fair to British creditors.''
But it is doubtful, to say the least, whether a delay of two
years, or more, between the insolvency of a debtor and the
declaration of a dividend would have been satisfactory in
all cases to colonial creditors.
In addition to bankruptcy legislation, the assemblies pre-
sumed to regulate the collection of debts in ways detri-
mental to the interests of the English merchants. Especi-
ally objectionable were provisions compelling the accept-
ance in payment for debts of commodities of uncertain
value, or of depreciated currency at an unduly low rate of
exchange. An act of Virginia for the " Encouragement
of Manufactures " was held objectionable because it pro-
vided that for all debts, contracted in money or tobacco,
the debtor could, upon taking oath as to his substance (in
money or tobacco), tender the same in payment and the
residue in certain commodities.' Notwithstanding the fact
that the depreciation of paper currency had advanced the
rate of exchange to forty per cent, it required more than ten
years of urgence from the Board of Trade to secure the
amendment of a Virginia law, inadvertently confirmed, by
which the tender of paper at twenty-five per cent was made
a legal discharge for sterling debts.* Declaring it "unjust
^ A. P. C, vol. V, p. 396; I June, 1774. A. P. C, vol. v, p. 313; 15
January, 1772.
^ A. P. C, vol. V, p. 311.
* 00/5-1358, p. 162. A report of the commissioners of the customs,
15 March, 1692.
* A. P. C, vol. iv, p. 389, The order in council stated that " though
the Courts find means by way of damages to decree the whole amoimt
of the debt according to the actual value of it in sterling, yet in cases
of executorship where minors are concerned the Courts are under the
necessity of adhering to the letter of the law."
547] POLICY IN REVIEW 1 29
to enact that Debts already contracted shall be hereafter
discharged according to an accidental rate of exchange,"
the Council disallowed a Jamaica act which fixed an arbi-
trary rate of forty per cent/
Equally objectionable and even more discriminatory
against English creditors were the offers of exemption from
arrest for previous debts, made by some of the frontier
colonies for the purpose of hastening settlement. An early
act of Virginia was disallowed because it barred British
creditors from recovery unless the debtor had carried over
to the colony effects to the value of his debts ; ' and, as well,
a South Carolina law. which by granting a five-year ex-
emption from arrest to all newcomers, enabled certain "evil
persons " from other colonies to " live in great splendor
and influence on the property of their Creditors." " A sub-
sequent law of Georgia which g^nted a similar exemp-
tion of seven years, excepted amounts owing in Great
Britain, but it was disallowed, nevertheless, on the ground
that the establishment of an asylum for the protection of
debtors against lawful creditors appeared " inconsistent
with the principles of justice, as well as of good policy." *
The government objected also to laws insuring a prior-
ity in the payment of local debts. An act of North Caro-
lina which provided that no foreign debts, not even except-
ing those due the crown, should have executions until
> A. P. C, vol. iv, p. 455.
' This act for regulating the collection of foreign debts, was passed
in 1663 and disallowed in February, 1718. CO/5-1318, p. 106. CO/s-
1365, pp. 36-38, 46-47. B. T. J., vol. xxvii, p. 121.
• CO/s-362, D, 64. B. T. J., voL xliii, p. 2. A. P. C, vol. iii, p. 395 ;
3 April, 1734.
♦ CO/5-646, C, 8. CO/5-676, C, 63. A. P. C. voL iv, p. 408 ; 3 March,
1759. In 1707 the Board reported to the same effect upon a similar act
of South Carolina. CO/5-1292, p. 17.
130 REVIEW OF COLONIAL LEGISLATION [548
amounts owed in the colony at the time of the suit had
been paid, was characterized by the merchants of London
as " unjust, illegal, and a bare-faced fraud," and was an-
nulled as " contrary to reason, inconsistent with the laws,
and greatly prejudicial to the interests of this Kingdom." ^
Two Pennsylvania laws of similar intent were condemned
with a declaration that all "Creditors should stand on the
same foot as to recovery." " The Board objected, however,
to any imposition of equality among creditors after legal
proceedings for the collection of a debt had begun. A pri-
vate act of Jamaica providing for the sale of an infant's
estates to pay the father's debts, was annulled because it
stipulated that the money thus obtained should be applied
" in equal shares and Proportions," whereas it should have
directed that all debts be paid " according to the several
Degrees and Priority and to the usual and due Course of
Law," thus preserving the legal priority of judgment and
bond creditors.^ A like objection proved fatal to an act of
New Hampshire which provided for an equal distribution
among creditors of insolvent intestate's estates " without
regard to the nature of the debts." *
In several instances acts providing for a speedy recovery
of debts were objected to because they endowed with a
final and exclusive jurisdiction, courts which the Board
feared would prove partial or incompetent. When Antigua
attempted to establish a court like that of London for hold-
ing pleas of foreign attachments, the act was disallowed
^ This act " Regarding Attornies from Foreign Parts and giving
Priority to Country Debts," was passed in 171 5 by the proprietary gov-
ernment and disallowed in August, 1747. CO/s-296, B, 71, B, 73. CO/
5-323, p. 303- A. P. C, vol. iv, p. 43.
2 Pa. Stats., vol. ii, ch. 52, p. 63. CO/5-1263, N, 40. Stats., vol. ii, ch.
176, p. 364. CO/5-1264, Q, 37.
» A. P. C, vol. V, p. 165 ; 12 August, 1768.
* C'O/5-912, pp. 156, 186, 210.
549] POLICY IN REVIEW I^I
upon the ground that it would " occasion many inconveni-
ences in commerce," and might "discourage British mer-
chants from giving credit to persons residing " there.* An
act of South Carolina which gave two justices and three
freeholders final jurisdiction over all actions of debt what-
soever not exceeding twelve pounds sterling, was disallowed
because the sum named was " too large to be determined
in so summary a way." ^ At the earnest solicitation of the
governor, a Georgia law " For the Easy and speedy Re-
covery of Small Debts " which established a court for the
trial of actions not exceeding eight pounds sterling, was
allowed to lie by " until the Colony is in a situation to
admit of more constitutional and less exceptionable Regu-
lations for the attainment of so desirable an end." '
The Board regarded with disfavor laws which preju-
diced creditors by setting a time-limit to the validity of
certain debts. Such was an act of Antigua which extended
the statute of limitations to judgments, a provision which
could only " operate in favor of the careless or ignorant
Debtor " and might defeat the just creditor.* Similar ol>-
jection was taken to a Massachusetts law which barred
action for debts on account after the expiration of two
years from the contracting thereof ; and to an act of North
Carolina which decreed that no real estate should be liable
for the payment of debts unless suit was brought within
five years after the passage of the act, or the death of the
alleged debtor."
* A. P. C, vol. iii, p. i8o; 23 November, 1728.
* A. P. C, vol. iv, p. 59; 4 May, 1748. The law was liable to other
objections as well.
» CO/s-648, E, 25. B. T. /., vol. Ixviii, p. 281.
* A. P. C, vol. iv, p. 412; 29 March, 1759.
» B. T. J., vol. xxviii, p. 256. CO/5-915, p. 285. A. P. C, vol. v, p.
39; 26 June, 1767.
132 REVIEW OF COLONIAL LEGISLATION [^^q
In a few cases laws were condemned because they ap-
peared grossly unfair or excessively burdensome either to
the debtor or the creditor. A Maryland act of 1704 pro-
vided that the deposition of a witness before a notary,
made in any foreign part without notice to the debtor,
should be evidence to prove any debt against an inhabitant
within the province. A deposition, the attorney general
objected, should not be allowed as evidence when the op-
posing party could not cross-examine, and was without
previous notice of the claim. ^ Upon the other hand, the
Board rejected, as an undue hardship upon the creditor, a
Maryland act which required him, when summoned, to ap-
pear and show cause why his debtor, having taken oath to
the possession of no estate exceeding five pounds sterling,
should not be discharged, and to furnish security for the
debtor's further maintenance in prison. For failure to
respond, the creditor was liable to a fine of ten pounds
sterling, and if he failed to establish a case the debtor was
to be released at the expiration of sixty days.^ In behalf
of creditors' heirs, the Board urged the modification of a
Massachusetts law which compelled the creditor to accept
a life interest in land as a full discharge of an execution
for debt."
The government permitted acts making lands and tene-
ments liable for the payment of debts, provided they were
in essential particulars conformable to the law of England
upon the subject.* From time to time, however, many
colonies passed laws making the property of absentee deb-
^ CO/5-716, H, 48 ; 12 November, 1707.
» CO/s-727, p. 132. B. T. J., vol. xxi, p. 244. This law " For the re-
lief of Poor Debtors " was passed in December, 1708, and disallowed
October 18, 1709.
» CO/5-915, pp. 168-170, 276. B. T. J., vol. xxvii, p. 348; 4 June, 1719.
* C'O/5-300, F, 4. A. P. C, vol. V, p. 38; 26 June, 1767.
551] POLICY IN REVIEW ' 1 33
tors liable for the payment of colonial debts. To these the
Board objected, except in so far as they were aimed against
debtors who, having dwelt in the colonies, had absconded
to avoid payment. Such laws, administered by colonials,
it was complained, deprived the English debtor of the oj)-
portunity for a fair defense and left him exposed to fic-
titious claims — a proceeding " contrary to the principles of
English law and highly dangerous to commerce." ^ Their
prevalence led, in 177 1, to a general instruction forbidding
the governors to assent to any law by which the property,
real or personal, of any persons who had never resided
within the colony should be made liable for the recovery
of debts. '^ Upon the other hand, instructions to the gov-
ernors urged, apparently without much success, the passage
of laws whereby creditors of English bankrupts having
estates in the colonies, could be satisfied for the debts owing
to them.'
In August, 1 73 1, several merchants of London petitioned
the crown for relief from colonial acts which impeded the
collection of their debts or placed them at a disadvantage
in the payment of duties. They complained that as the
laws stood in some of the plantations, his majesty's sub-
jects residing in England were unable to recover just debts,
or had " such remedy only as was very partial and pre-
carious." * After a protracted hearing, the Board reported
in the following January, that while several laws upon the
subject were unreasonable, they were of long standing, had
never been complained of before, and might properly lie
' A. P. C, vol. V, pp. 312, 314, 390. CO/5-1078, p. 206.
* CO/5-999, p. 243. B. T. J., vol. Ixxix, p. 12. A. P. C, vol. v, p. 320.
•Commission to Dudley, CO/5-910, p. 33; 11 December, 1701. CO/
S-726, p. 177. Board to Gooch, CO/5-1366, p. 3; 16 February, 1728.
« B. T. /., vol. xl, p. 221.
134 REVIEW OF COLONIAL LEGISLATION [552
by for the present/ Apparently both the merchants and
the Board had in view the possibility of interposition by
Parliament, for on November 24th the merchants had
stated that " all they desired was an act to be passed here
to enable them to recover their debts in the Plantations."
Shortly after each house of Parliament requested copies
of the merchants' petition and the Board's report thereon.
There followed the enactment by Parliament of a law
tending " to revive the Credit . . . formerly given by the
trading subjects of Great Britain to the Natives ... of
the Plantations, and to the advancing of the trade of this
Kingdom thither." It provided that thenceforth, in any
action or suit in the Plantations regarding a debt, wherein
a resident of Great Britain should be a party, he as plain-
tiff, defendant or witness might make an affidavit in writ-
ing, upon oath or affirmation, before a magistrate. This,
when transmitted to the colony under the seal of a city,
borough or township, was to have the same force as though
made in open court. The act also declared lands, tenements
and negroes owned by Plantation debtors, liable for the
payment of debts, in like manner as these properties were
liable in England, and made them subject to the same reme-
dies and proceedings in colonial courts as though they were
personal estates.^
The provision that slaves should be regarded as chattels
when used as security for debts, was a departure from the
traditional British policy which annexed them to the soil
in colonies dependent upon their labor. ^ But the fact that
as real property they were often entailed, or settled for life
with a remainder over, injured their usefulness as a secur-
* B. T. J., vol. xli, p. 27.
' Pickering, Statutes, vol. xvi, p. 272, ch. 7 ; 1732.
* CO/5-1368, p. 226.
553] POLICY IN REVIEW __- 135
ity, and caused Virginia in 1728 to anticipate the act of
Parliament in making them personal for the payment of
debts/ In 1740 South Carolina passed an act declaring
slaves personal property in all respects, and as such, pre-
sumably subject to division among the children upon the
settlement of an estate. The king's counsel called the
Board's attention to the fact that this was inconsistent with
the laws of other colonies and with the act of Parliament,
and recommended that the law be disallowed.^ But noth-
ing was done and it remained in operation. Meanwhile
Virginia found her compromise, by virtue of which slaves
were personal as security for debts but real as to inheri-
tance, unsatisfactory. The fact that a sale for the debts of
a tenant in tail served to bar the entail, resulted in many
suits. When the land became overstocked, slaves held in
tail were a manifest prejudice to the tenant; while their
intermarriage with those held in fee simple caused great
confusion as to title.' Consequently the assembly made
two attempts, both defeated by the Privy Council, to follow
the example of South Carolina in making slaves i)ersonal.*
In 1767 a similar act of Georgia was disallowed, upon the
ground that slaves were a necessary i)art of the plantations,
which might become valueless to the heir, and suffer
neglect if they were separated from the land." But Gov-
ernor Wright refused to accept this reasoning as conclu-
sive. He wrote to Hillsborough, citing the act of Parlia-
ment to show that it was the obvious intention to make
1 CO/5-1326, V, 60; 10 January, 1729.
» Report of Lamb, CO/5-372, I, 43; 2 November, 1748.
• A memorial of the Council and Burgesses, CO/5-1327, W, 90; 21
December, 1752.
* A. P. C, vol. iv, p. 138; 1751. CO/5-1368, p. 226; 6 May, 1763.
» A. P. C, vol. v, p. 40: 26 June, 1767.
136 REVIEW OF COLONIAL LEGISLATION [554
both lands and negroes personal for the payment of debts,
and mentioning the fact that South Carolina had long en-
joyed a law similar to that desired by Georgia/ As a re-
sult, the Board yielded, and Georgia was permitted to pass
a law making slaves personal, " especially as it would be
conformable to the act [of Parliament] for the more easy
recovery of debts in the Plantations." ^ We may conclude,,
therefore, that because slaves were used extensively in
some colonies as a basis for credit, the government agreed
with the English merchants that they should be subject to
attachments and executions for the payment of debts; but
that it consented only with manifest reluctance to any
change in their status which might decrease the value of
lands and prove detrimental to the pursuit of agriculture.
The regulation of exchange rates upon foreign coins
was another phase of colonial finance which provoked the
interposition of Parliament. Because the colonies had no
mints, and because their imports from England exceeded
their exports, they were continually being drained of coin
and were unable to keep a supply sufficient for the ordi-
nary needs of trade. To meet the difficulty, the assemblies
ascribed to the various English and foreign coins values
somewhat greater than their intrinsic worth would war-
rant, in order that bullion and coin might be drawn from
the other colonies or the West Indies and kept from ex-
portation. But this expedient conflicted, not only with a
well-founded belief in England that the best interests of
British commerce demanded a uniform value upon coins
throughout the colonies, but also with the common mer-
cantilist idea that the commercial welfare of the mother
country depended upon the importation of specie, resulting
1 CO/5-650, p. 155; 5 October, 1768.
^ A. P. C, vol. V, p. 176; 6 March, 1769.
555] POLICY IN REVIEW — — j^^
from a favorable balance of trade/ Accordingly in 1703
the crown issued a proclamation fixing the values of coins
in the plantations, and soon after Parliament passed an act
for the same purpose.^ This manner of regulation proved
an effective check upon the colonies, because laws whose
provisions were deemed in conflict with an act of Parlia-
ment could be disallowed forthwith. That it failed to
afford a satisfactory solution of the difficulty from the
point of view of the colonies, is obvious from their fre-
quent and repeated complaints concerning the lack of a
circulating medium, and by the fact that at one time or
another almost every colony passed a law which was dis-
allowed because it conflicted with the established rates.*
Pennsylvania and South Carolina made ingenious but vain
attempts to obtain their own pleasure by indirection. The
former passed an act providing that the prices of all goods
should be computed at three-forths the sum which the
' Report of the Lord High Treasurer, CO/s-323, G, i ; 10 May, 1704.
• B. T. J., vol. XX, p. 138 ; 14 May. 1708.
• Such were : an act of New York " Regulating Current Coin," which
was passed in October, 1708, and disallowed March 3, 1709; N. Y. CoL
Docs., vol. V, p. 67 ; an act of South Carolina, which was open to other
objections, as well, was disallowed in 1754, A. P. C, vol. iv, p. 211 ; an
act of Jamaica for " Ascertaining the Value of Spanish Milled Money"
was disallowed May 20, 1760, A. P. C, vol. iv, p. 450. An act of New
Hampshire, " Ascertaining the Value of Coined Silver and Gold," was
disallowed August 12, 1768, A. P. C, vol. v, p. 159; and a law of
North Carolina " To Encourage the Importation of British Coppe-
Half Pence" on June 7, 1771, A. P. C, vol. v, p. 308. An act of Penn-
sylvania was annulled just prior to the promulgation of the royal
proclamation, A. P. C, vol. ii, p. 441. CO/s-1262, L, 46.
A Massachusetts act upon the subject had been confirmed, and in
accordance with an opinion from the attorney general, remained in
force despite the royal proclamation. But after the passing of the act
by Parliament, the provincial courts, at least, appear to have followed
the values prescribed therein. CO/5-323, F, 14. CO/5-913, p. 285 ; 29
January, 171 1,
138 REVIEW OF COLONIAL LEGISLATION [556
vender would have taken for them had no change been
made in the currency by act of Parliament ; while the latter
allowed a rebate of ten per cent upon all duties paid in gold
or silver.^
1 CO/s-1264, Q, 39, Q, 42 ; 20 February, 1714. A. P. C, vol. iii, p.
SS3.
CHAPTER V
The Policy of the British Government in Legisla-
tive Review: Insistence upon Conformity to
THE Law of England
In addition to the requirement that colonial legislation
conform to the economic aims and policies of the Empire,
the government insisted, in the language of its grants and
charters, that laws be not repugnant, but as nearly as might
be conformable to those of England. This wording im-
posed no particular laws, not even the common law, upon
the colonies,' while its indefiniteness permitted both the
colonists and the mother country a wide discretion in judg-
ing what the law of England upon any particular subject
might be, and what deviations from strict conformity
should be deemed advisable because of social and economic
differences. For the government realized the absurdity of
forcing the polity of a long-established community upon
newly-settled colonies where conditions of life were primi-
tive, and permitted, from the first, the enactment of legis-
lation founded upon local usages and customs which dif-
fered from those of England.* Indeed, attempts of the
assemblies to re-enact English statutes, or to declare the
* The charter granted by Charles II to Pennsylvania required that
laws of property and crimes should be the same as in England, until
altered by the Proprietor. Reinsch, " English Common Law in the
Early American Colonies," Select Essays in Anglo-American Legal
History, vol. i, p. 397. But in no other case was a presumption of iden-
tity placed upon the colonists.
* Report of the committee upon the laws of New Hampshire, C. S.
P., 1681-5, p. 174. Report of Attorney General Harcourt upon acts of
Maryland, CO/5-716, H, 48; September, 1707.
557] 139
I40 REVIEW OF COLONIAL LEGISLATION [558
laws of England wholly or partially in force, were dis-
couraged, lest they operate to diminish the power of the
executive in the dominions, or to deprive the crown of its
right to veto each individual enactment. Attorney General
Trevor objected to a Maryland law which included the
Magna Carta, upon the ground that it might conflict with
the constitution and other laws of the province, or with
the royal prerogative/ Against a provision in the bill of
rights passed by the first assembly of New York, that the
province should be "Governed by and according to the
Laws of England," the committee cited the fact that this
privilege had not been granted " to any of His Majesty's
Plantations, where the act of habeas corpus and all such
other Bills do not take place." ^ The attorney general even
took exception to an obscure clause empowering justices to
"do justice according to the Laws of England and Vir-
ginia," lest " all the laws of England be enacted there." *
A law of New York which declared the extension to the
colony of several acts of Parliament was disallowed, al-
though it introduced nothing in itself objectionable, because
it did not seem fitting that laws should " be adopted in
Cumulo, and that, too, without stating more of the acts
than the titles and sections adopted. [This] deprives both
the Crown and the Governor of that distinct approbation
or disapprobation that is essential to the constitution of the
Province, . . . and would occasion great difficulties in Con-
struction, . . . such as ought not to be left to Courts of
Justice." *
* C. S. p., 1693-6, p. 627; II December, 1695.
' N. Y. Col. Docs., vol. iii, p. 357.
» CO/5-1314, L, 17; IS August, 1704.
* A. P. C, vol. V, p. 285; 9 December, 1770. A similar objection was
raised against several acts of Jamaica for " Declaring the Laws of
England in force," C. S. P., 1677-80, p. 67. A. P. C, vol. ii, p. 833.
CO/s-725, p. 436.
559] POLICY IN REVIEW I41
In other cases the Council deemed the adoption of Eng-
lish statutes inexpedient. A Pennsylvania law for quar-
tering soldiers was disallowed because, by enacting pro-
visions from an act of Parliament originally passed when
the army was maintained without the consent of the legis-
lature, it threatened to obstruct the defence of the province ;
and New York was forbidden to pass a law for " Prevent-
ing Disputes by the Demise of the Crown," because it was
" too closely modelled on English laws inapplicable to con-
ditions in the Colonies." ^
Although generally tolerant of mere difference, the law
officers and the Board of Trade almost invariably con-
demned acts whose provisions they deemed inconsistent
with the law of England. In the interests of conformity
they demanded, ( i ) a certain technical perfection, insisting
that legislation be passed in a regular manner by a compe-
tent law-making body, and that it be clearly worded and
of reasonable intent. Furthermore they required, (2) that
acts be not inconsistent with the mandates of a higher
authority or with a more fundamental law, such as the
governor's instructions, the charter of the colony, or an
act of Parliament ; and that there be no falling short from
such standards of justice and equity as were embodied in
the jurisprudence of England.
It will be well, perhaps, to consider at some length ob-
jections offered to what may be styled the technic of colo-
nial laws. Not until the early part of the eighteenth cen-
tury was there any considerable number of trained lawyers
in the plantations. Moreover, the prejudice against them
was so strong that some of the colonies for a time forbade
their acting as members of the assemblies. The settlers,
comparatively few of whom were from the professional
» A. P. C, vol. iv, p. 338: 7 July, 1756. A. P. C, vol. iii, Intro., xvi.
142 REVIEW OF COLONIAL LEGISLATION [560
class, possessed the English deference to custom and desire
for fair play rather than any extensive legal knowledge.
Thus isolated and confronted with new conditions and
problems, they based their first codes, in the Quaker and
Puritan colonies, upon the word of God, or elsewhere, upon
local custom and their own conception of justice and equity.
It was inevitable, therefore, that when trained English law-
yers began a systematic perusal of colonial enactments dur-
ing the latter part of the seventeenth century, they should
note many lapses from legal perfection.
The most common complaint, especially during this early
period, was that laws were vaguely and loosely worded.
The Board objected, for example, to the use, without fur-
ther specification, of the phrases " enumerated commodi-
ties " and " infectious sickness " in laws of Massachusetts,
and to a provision that a certain act of Parliament should
be enforced in Pennsylvania " as far as circumstances per-
mit." ^ This fault was, if possible, even more objection-
able in criminal legislation, where exception was taken to
such phrases as " Devilish Practice," and " playing at cards,
dice, lotteries or such like." ^ An act of New Jersey im-
posed capital punishment upon counterfeiters of foreign
coin which was " by common consent " passed as full satis-
faction for debts. ^ The Board complained that definitions
of crime were too general, that they often contained no
clause making premeditation or intent essential to convic-
tion, and that they afforded judges an undue discretion,
which was liable to arbitrary extension and abuse.* Laws
renewing or amending other laws, or adopting acts of Par-
1 C. S. P., 1700, pp. 475, 555. Pa. Stats., vol. iii, p. 465.
« B. T. J., vol. viii, p. 16. CO/5-1263, N, 40.
* N. Y. Col. Docs., vol. V, p. 46,
* A. P. C, vol. iv, p. 73. CO/5-1263, N, 40.
561] POLICY IN REVIEW 143
liament in the colonies, sometimes failed to cite in an exact
manner the precise enactments, or parts thereof, to which
they had reference. A law of North Carolina altered two
former acts and repealed another only as to matters "within
the perview" of itself.^ Even more objectionable was an
act of Maryland which vaguely secured the rights and lib-
erties of the inhabitants according to the laws and statutes
of England, in all matters concerning which the legislation
of the province was silent.^ In some cases acts were so
carelessly framed that they were in parts inconsistent or
unintelligible. The king's counsel reported, for example,
that a Massachusetts law which made lands and tenements
liable for the payment of debts, was so unhappily worded
that he could not see how, " by any construction whatever,
it could effect the end proposed by it." '
In other instances the Board condemned laws because
they appeared to be unnecessary and trivial, or absurd and
unreasonable. To a Pennsylvania act for regulating the
names of days and months, it was objected that " every
man may call [them] as he pleases." * Another law of
Pennsylvania made persons guilty of bearing false witness
liable to the same penalty which persons against whom they
testified would have suffered, if convicted." Massachusetts
attempted to award, in certain cases, the full penalty pre-
scribed by a bond, without recourse to chancery — an exclu-
' CO/s-299, E, so.
» Act for " The Service of God." CO/S-72S, p. 179.
• Acts and Resolves, vol. ii, 67, ch. 3. A similar criticism was made
against an act of South Carolina for issuing bills of credit, CO/5-402,
p. 158; December, 1748. Board to the Governor of the Leeward
Islands, C. S. P., 1700, p. 736. Comment of Bellomont upon laws
transmitted, C. 5". P., 1700, p. 529,
• Pa. Stats., vol. i, p. 464.
• CO/S-1263, N, 40.
144 REVIEW OF COLONIAL LEGISLATION [562
sion of equity in express words which the Board charac-
terized as absurd ; ^ while Maryland required masters of
vessels importing convicts to bring a transcript of their
conviction under seal of the court, something which, in
England, they had no authority to obtain.^
Penalties imposed by criminal legislation were in many
cases excessively severe. This was particularly true of
early legislation in the Puritan colonies and in Pennsyl-
vania, where offences were made capital in accordance with
the word of God. " If by the word is ment the Mosaical
law," says an early report upon Massachusetts laws, " the
patent will not in many instances be fit to be followed by
Christians, for example, to make it death to gather sticks
on the Sabbath and many others." ^ In a report upon acts
of Pennsylvania, Attorney General Northey objected to
castration as a penalty " never inflicted by any law in His
Majesty's dominions," and to making fraudulent taking a
felony, when it was not regarded as such in England.* A
New York act for " Regulating Fees " was disallowed be-
cause of several objectionable features, one of which was
the perpetual disbarment of lawyers violating its provisions,
although the duration of the act itself was but three years. °
Acts whose provisions were in any way retrospective
were condemned as bad law. Within this category fall an
act of Antigua, passed after a crime had been committed
in order that slaves might testify against the supposed
offenders;^ a law of Georgia which rendered void deeds,
^ Acts and Resolves, vol. ii, p. 129 ; 20 May, 1725. Antigua, A. P. C,
vol. V, p. 364 ; 1773-
' CO/5-1278, Z, 8; June, 1771.
' C. S. P., 1677-80, p. 139; 2 August, 1677.
* CO/5-1263, N, 40; 13 October, 1704.
8 CO/5-1 121, p. 455; November, 1709.
• A. P. C, vol. iii, p. 612; 30 November, 1738.
563] POLICY IN REVIEW 145
conveyances and wills already operative, unless they were
again registered within three months ; ^ an attempt to levy
back taxes upon lands of the proprietors in Pennsylvania,
although such lands had not been liable under former tax
acts;^ and, finally, a law disqualifying one John Adams
for membership in the Barbadoes assembly because he had
been convicted and punished for a crime.'
The law officers objected in numerous instances to the
practice of joining two or more acts under the same title,
or to the blending under one title of provisions upon un-
related subjects. Such defects resulted from ignorance or
carelessness, or occasionally from a deliberate attempt to
secure questionable ends by means of " riders." But in
any case, they rendered the task of review more difficult,
and shocked the legal sensibilities of men trained in the
English law.
Numerous acts, many of which were otherwise unex-
ceptionable, were disallowed because their operation was
contingent upon a previous law already annulled. Such,
for example, was the fate of a Pennsylvania act appoint-
ing collectors for a duty on convicts which had already
met with the royal veto.*
Laws were considered defective, also, because of irreg-
ularity in the manner of their enactment. Fourteen acts
of Maryland, for instance, were condemned because, hav-
ing been passed in the absence both of a governor and a
lieutenant governor, they were signed by the entire council
instead of the president of the council, who in accordance
with the governor's instructions should have assumed the
> A. P. C, vol. iv, p. 40s ; 3 March, 1759.
» CO/5-1275. W, 45; March, 1760.
• A. P. C, vol. iv, p. 686; 20 July, 1764.
* A. P. C, vol. iv, p .72 ; 29 October, 1748.
146 REVIEW OF COLONIAL LEGISLATION [564
government during the interval/ An act of South Caro-
lina, passed during a time of civil confusion, by an assem-
bly which had been dissolved and a governor who had
usurped authority, was held by the Board not to be a law
in force. ^ In other cases unseemly haste in enactment was
the determining factor against a law. An act of Pennsyl-
vania which granted to an individual a ten-year exemption
from suits for debt was disallowed because, after having
been introduced upon the application of only part of the
creditors, it was passed through all the readings in a single
day,^ An ordinance of South Carolina concerning the In-
dian trade was declared to have been passed " in an illegal
and precipitate manner " because the assembly was sum-
moned upon only eight days' notice, and the ordinance
passed in two days.*
Many acts were declared void upon the ground that the
assemblies in passing them had exceeded their proper juris-
diction. A majority of these laws were concerned with
alleged crimes or disputes regarding private property which
were properly cognizable by courts of law. This excess of
legislative zeal was due partly to the dominant position of
the assemblies in the provincial governments, more partic-
ularly that of the "General Courts" in the charter colonies,
and to a common lack of satisfactory equity courts. One
of the most conspicuous acts of usurpation was that of the
Massachusetts general court, which passed several acts fin-
ing Vetch and his associates for carrying on an illegal
trade with the enemy. As this crime was not one "cogpniz-
» CO/5-727, p. 188; 2 November, 17 10.
» CO/5-372, 1, 65. B. T. /., vol. Ivii, unpaged, 26 October, 1750.
*A. P. C, vol. iv, p. 341 ; 16 June, 1758.
*A. P. C, vol. iii, p. 514. B. T. J., vol. xlvii, p. 56; 25 May, 1738.
The law officer made a similar criticism against an act of North Caro-
lina, CO/s-296, B. 77.
565] POLICY IN REVIEW 147
able before the General Assembly," the Privy Council
ordered that the accused give security and abide by the re-
sult of " a fresh trial in the ordinary course of law." ^ An
attempt of Jamaica to regulate the exportation of prize
goods brought to the Island, was declared " an arrogant
assumption of power," the matter being one of general
policy " to which the jurisdiction of the British legislature,
alone can extend." *
In the great majority of cases, however, laws disallowed
upon grounds of non-conformity, or " repugnance to the
law of England," were deemed contrary to the dictates of
some higher authority, or to the provisions of a more fun-
damental law. Governors frequently violated their instruc-
tions by passing laws upon forbidden subjects, or by neg-
lecting to insist upon the inclusion of a suspending clause.
Because such legislation was always objectionable in itself,
the breach of royal instructions, although often mentioned,
usually assumed a minor place among the reasons given for
disallowance. An appropriation act of South Carolina,
however, was ordered to lie by, and the governor was in-
structed to secure the passage of a new law altering so much
of the old as was inconsistent with the twentieth article of
his instructions." An act passed in Jamaica which increased
the membership of the assembly and, despite standing in-
structions, contained no suspending clause, was disallowed
solely upon that account; although, in view of the evident
necessity of the act, the governor was allowed to approve
a new law identical with that repealed.*
In numerous instances the Council declared laws incon-
> A. P. C, voL ii, p. 516; ao February, 1707.
» A. P. C, vol. iv, p. 511 ; IS February, 1762.
» CO/S-36S, F, 8; October, 1735. j
* A. P. C, vol. V, p. 352; 5 March, 1773.
148 REVIEW OF COLONIAL LEGISLATION [566
sistent with the terms of a provincial charter, and therefore
void. Several objectionable acts passed by the proprietary
governments of the Carolinas were annulled upon the broad
ground that being repugnant to the law of England, they
constituted a violation of the law-making power conferred
by the charter. Thus, with much show of logic, an act of
North Carolina which gave a preference to executions upon
judgments for local debts, was declared "contrary to reason,
inconsistent with the Laws, [and] greatly prejudicial tO'
the Interests of this Kingdom, and therefore not warranted
by the Charter, and consequently void." ^ A Connecticut
law against " Hereticks," against which the Quakers com-
plained, was characterized as "contrary to the Liberty of
Conscience Indulged by Dissenters by the Law of England,
as likewise to the Charter granted to the Colony." ^
Massachusetts lost several laws which were deemed incon-
sistent with her charter. In these cases, however, disallow-
ance was based upon more specific grounds. Quakers and
members of the Church of England contended with success
that their taxation for the support of Puritan ministers
was a violation of the charter provision allowing liberty of
conscience to all Christians except Catholics.^ An early
act for " Regulating Chancery " was held to violate the
charter in that by implication it prohibited appeals to his
majesty in real actions ; while a law " Impowering the In-
habitants of Rochester to Regulate the taking of Fish "
was held to conflict with a provision that no subject of
England should be debarred from fishing on the sea coast.*
^ A. P. C, vol. iv, p. 43; 7 August, 1747.
' A. P. C, vol. ii, p. 832; II October, 1705.
' CO/5-915, p. 400. B. T. J., vol. xxxvi, p. 254. Acts and Resolves,
vol. ii, pp. 477, 635. A. P. C, vol. iii, p. 491.
* CO/5-895, p. 213. A. P. C, vol. V, p. 395 ; I June, 1774. CO/5-
^7. P- 75.
567] POLICY IN REVIEW 149
Repugnance to such acts of Parliament as extended to
the plantations proved fatal to a considerable number of
colonial laws. These included acts imposing obnoxious
duties upon British goods, interfering with the admiralty
courts or with the royal customs officers, regulating the
exchange upon foreign coins, or taxing the importation of
convicts. In several instances laws annulled were not in
direct conflict at the time of their enactment with any act
of Parliament which extended to the colonies. A law of
New York, passed at the behest of the Board, was dis-
allowed because a subsequent act of Parliament covered
the subject and rendered its further operation unnecessary.^
The crown disallowed a Pennsylvania act for " Regulating
the Value of Coins " in order to clear the way for the
royal proclamation and the act of Parliament upon that
subject; and a law of New Jersey for the salvage of ships
was disallowed because it extended to the province in their
entirety two acts of Parliament which by their own pro-
visions already had partial application there.*
Because of variance with the common law, the Privy
Council annulled numerous acts in regard to the division
of intestate's estates, the control of married women over
their own property, the granting of divorce, the issuing of
attachments for debt, and various other subjects. An act
of South Carolina which granted new-comers a five years'
exemption from arrest for previous debts, was declared
" in its own nature repugnant to the Common Law." * As
a rule, however, the law officers stated that acts offending
in this respect were " repugnant to the law of England,"
and did not specifically mention the common law. Jackson,
> " Restraining Pirates," N. Y. Col. Docs., vol. v, p. 47 ; 3 March,
1708.
' A. P. C, vol. V, p. Ill ; 26 February, 1768.
* CO/s-362, D, 64. A. P. C, vol. iii, p. 396.
I50 REVIEW OF COLONIAL LEGISLATION [568
who, as king's counsel, loved to play with large abstrac-
tions, frequently based his criticisms upon the broad ground
that a law constituted a violation of the British constitu-
tion, or, in other words, that it failed to maintain the Eng-
lish standard of legal justice. Provisions empowering
magistrates to commit or to exempt alleged offenders upon
their own oaths were held to establish " a kind of inquisi-
torial authority" which was "contrary to the spirit of the
laws of this country," and " little conformable to the
British principles of Justice." ^ Upon Jackson's suggestion,
the Council disallowed with similar comment two acts from
the Island colonies which permitted attachments upon the
goods of absent persons,^ and a law of Pennsylvania which
fixed a penalty for an offence committed outside the limits
of the province.^
In view of the importance which English law accorded
to the preservation of personal security and freedom, it was
natural that the law officers should be critical of unseemly
infringements upon the domain of individual liberty. Upon
this ground they made numerous objections to excessively
severe penalties imposed by criminal laws. They insisted
that nO' man should be outlawed or attainted except by
judicial proceedings and upon failure to surrender himself
within ample time after being summoned to do so.* They
^ An act of West Florida, impowering magistrates to prohibit the
sale of rum to the Indians, A. P. C, vol. v, p. 312; 7 Jime, 1771. A
similar criticism was made against an act of New York, A. P. C, vol.
V, p. 399 ; 6 July, 1774.
' A. P. C, vol. V, p. 390; 7 June, 1771. A. P. C, vol. v, p. 390; 2
February, 1774.
» A. P. C, vol. V, p. 398; 6 July, 1774. A. P. C, vol. v, p. 38; North
Carolina, 26 June, 1767.
* A North Carolina act for " Preventing Tumults and Riotous As-
semblies" provided that when judges or justices should post proclama-
tions commanding an offender to surrender within sixty days and stand
trial, he should, upon failure to comply, be deemed guilty, and that it
569] POLICY IN REVIEW 151
objected both to the conviction of a person accused, upon
his mere refusal or failure to clear himself by an oath — a
provision which could not but " prove an irresistable temp-
tation to perjury," ^ and to conviction upon an information
in writing unsupported by the oath of the accuser.^ The
Board regarded with disfavor acts which conferred arbi-
trary or excessive powers upon commissioners, or upon
justices of the peace. Upon a law of Massachusetts re-
garding the care of the poor, the king's counsel reported:
It " vests unaccountable power in parish officers. At their
pleasure they may disturb the profitable living of any person
whatsoever by Informing for the strangest misdemeanors
ever Invented. No single person of either sex must live at
their own hand, but under some orderly family govern-
ment; in other words, not keep house for themselves — a
most unreasonable restraint." * In the interests of personal
security the Council disallowed an act of Virginia, passed
in order to preserve the peace by preventing assaults, which
exposed citizens to corporal punishment upon a hasty ver-
dict, and allowed any person whatever to prosecute in his
fihould be lawful for any person to kill him, and that his property
should be confiscated. Although Jackson conceded that the disor-
dered state of the province afforded some excuse for this act, he de-
clared it " altogether unfit for any part of the British Empire " and
" irreconcilable to the principles of the constitution." A. P. C, vol. v,
p. 336; 22 April, 1772.
A law of New York which declared two men outlaws after ten days,
without further proceedings against them, the Board considered " un-
just and contrary to the laws of Ejigland, which allow a much longer
time in case of Outlawry." CO/5-1 119, p. 273. CO/5-1048, V, 8; 31
December, 1702. Opinion of Attorney General Northey upon an act
of Virginia, " Apprehending an Outlying Neg^o," Chalmers, Opinions,
P- 405-
^ A. P. C, vol. V, p. 399; 6 July, 1774. CO/5-942, p. 271; 10 July,
1764. CO/5-1055, Dd, 99; II December, 1729.
* A. P. C, vol. iv, p. 73; Antigua, 28 November, 1748.
» Opinion of West, CO/5-878, Bb, 133; 15 May, 1725- C"0/5-885, 15.
152 REVIEW OF COLONIAL LEGISLATION [570
own name for an injury to another, provided the person
wounded neglected to bring action within three months/
A like fate befell a law of South Carolina whereby the
assembly declared a virtual suspension of habeas corpus,
and sought to indemnify certain judges who were charged
with arbitrary and illegal conduct.^
The great importance accorded by English jurisprudence
to the protection and security of rights in private property
is also strongly reflected in the attitude of the law officers
and the Board of Trade toward colonial enactments.
Hence arose the additional restrictions and elaborate safe-
guards placed upon the passage and review of " private "
laws, most of which affected the property of particular
persons. Moreover, general laws which contained provis-
ions, even though obscure and relatively unimportant, look-
ing towards the confiscation of private property without
compensation or trial at law, were sure to be challenged in
England. The Board refused, for example, to sanction the
pulling down of certain houses in Kingston, Jamaica, until
provision should be made for indemnifying the owners.^
Lamb objected to a Virginia act for dividing two counties,
because without legal process it compelled a man to pull down
a mill and a mill-house, thus depriving him of property upon
a mere " suggestion of inconvenience arising therefrom." *
An attempt to lower the rate of interest upon existing loans,
and another to set a price upon lands taken over by the
^ A. P. C, vol. V, p. 362; 7 April, 1773.
2 CO/5-363, E, 5. A. P. C, vol. iii, p. 396; 11 April, 1734. The act
for " Preventing Suits and Disturbances to Judges according to the
Habeas Corpus Act," grew out of a quarrel in the assembly over the
granting of unsettled lands. Several deputies were restrained illegally
in the custody of messengers of the house for " running out patent
lands contrary to the Quit Rent Act."
» A. P. C, vol. ii, p. 684; 25 October, 1714.
* CO/5-1330, p. 239; 22 May, 1762.
571 ] PCLICY IN REVIEW 1 53
colony without affording the owner an opportunity of op-
posing the act, were held to be confiscatory/ In its solici-
tude for the security of private property, the Board de-
feated attempts to dispose of the property of minor heirs
without the consent of a legal guardian.^ It insisted that
acts empowering vestries to sell glebes should specify the
future application of the money thus obtained, and not
leave its disposal wholly to the discretion of the vestry, lest
the interest of the parish be injured/ It objected also to
the delegation of final or extensive jurisdiction in regard
to the disposal of private property to commissioners or
justices of the peace. Jackson, for example, criticized an
act of New York for defraying the expenses incurred in
settling the boundaries of certain lands, because the sums
due were to be fixed by commissioners from whose decision
there was no appeal, while the lands of claimants, some of
whom were absent, some of whom were infants and some
femmes convertes, were to be sold in default of prompt
payment.* Any attempt to dispense with the statute of
limitations was sure to meet with disapproval, because, in
the language of the king's counsel, no law was " more
essential to the security of private property." '
The numerous colonial acts regarding the conveyance of
^ A. P. C, vol. V, p. 160; New Hampshire, 12 August, 1/58. A. P.
C, vol. V, p. 363 ; Antigua, 7 April, 1773.
« C"0/5-300, F, 5; North Carolina, 30 June, 1766. Report of West
upon an act of Pennsylvania for " Vesting the House and Lands of
the Clark estate in Philadelphia in trustees to be sold," CO/5-1265, O,
191 ; 12 November, 1719. A concise summary of this law and the facts
relevant to it, appears in Dickerson, American Colonial Government,
P- 259-
• A. P. C, vol. iv, p. 684; Virginia, 20 July, 1764. CO/5-1369, p. 237
♦CO/5-1077, p. 293; 13 January, 1774. CO/5-972, E, 46; 24 Decem-
ber, 1723. CO/5-855, p. 289; 21 July, 1774.
' CO/5-301, G, 48. A. P. C, vol. v, p. 308; North Carolina, 7 June,
1771. A. P. C, vol. iii, p. 226; Virginia, 26 March, 1729.
154 REVIEW OF COLONIAL LEGISLATION [572
lands were practically all of a private nature. They fall,
for the most part, into three classes : those ( i ) confirming
doubtful titles, those (2) authorizing sale or partition, and
(3) those for barring or docking entails. In reviewing
these laws the Board insisted with special firmness upon
adherence to the formalities prescribed for private bill pro-
cedure, and the absence of the required saving or suspend-
ing clause was almost certain to cause disallowance. An
adverse report upon three laws of Virginia observes :
" these acts affect the Rights and properties of your Maj-
esty's subjects. Yet they were passed without the observ-
ance of any of the [prescribed] regulations. . . . [There is]
no certificate of any previous Notification in the Parish
Church of the intention of the parties to apply for such an
act, . . . nor any proof of the consent of the several per-
sons interested, . . . nor saving of the right of Your Maj-
esty, or of any Body Politic or Corporate, nor of any pri-
vate persons not mentioned, nor any clause suspending the
effect until royal approval. These regulations [are] essen-
tial to the security of the right of property of Your Maj-
esty's subjects [and] are coeval with the Constitution of
the British Colonies. [They] cannot be set aside without
subverting a fundamental principle." ^
In considering laws which confirmed titles, care was
taken to safeguard the possible rights of any prior claim-
ants; while in passing upon acts authorizing sale or parti-
tion, the Board was especially solicitous for the interests
of minor or future heirs. It was objected that an act of
Maryland which directed the sale of real estate for the
payment of debts, left the personal property wholly exempt,
to the manifest prejudice of the heirs.^ A public act of
^ A. P. C, vol. iv, p. 449; 20 May, 1760.
* CO/s-716, H, 48; 17 September, 1707. In connection with an act of
New Hampshire the Board refused to accept the consent of a minor
to the exchange of his land. A. P. C, vol. iv, p. 679; 20 July, 1764.
573] POLICY IN REVIEW 15-
New York for the partitioning of lands held in joint tenacy
was disallowed because it gave lands to all tenants in com-
mon and their heirs, thus favoring the heirs of tenants for
life at the expense of those inheriting from owners in fee
simple. ^
In several instances the Board refused to consider the
merits of a controversy regarding property, upon the
ground that its settlement should have been intrusted to a
court of law, rather than to a private act of the legislature.
It was held unreasonable for a legislature to pass a law
setting aside a conveyance of land as fraudulently obtained,
without even hearing the parties concerned, some of whom
were infants residing in England.* An act of Georgia
which was aimed to confer upon certain persons a clear title
to lands near Savannah, was disallowed because " the de-
termining upon a question of this nature by a partial act
of Legislature without any hearing of the parties or any
of those Regulations and Exceptions which Justice and
Policy have prescribed in all general laws for quieting pos-
sessions, is arbitrary, irregular and unjust, and subversive
to those principles of the Constitution by which disputes
^ CO/5-1124, p. 107. B. T. J., vol. xxviii, p. 380; 9 July, 1719.
* An act of New York for "Annulling a fraudulent Conveyance of Mary
Davenport." The facts were as follows : One John Miseral willed
part of his estate to his children and the remainder, a farm, to his
wife Mary, with power to sell or dispose of the same during her life.
If she retained it, the property was to be equally divided among the
children. Miseral died, and the widow assigned the estate to one
Brown in tnist for one Price, whom she soon married, and Brown
made over the estate to Price. He willed it to his wife during her
life, and after death to his cousins and their heirs. After Price's
death the wife, unknown to the cousins and their minor heirs, ob-
tained from the legislature an act vesting in her the fee simple. This
was done upon the suggestion that she was illiterate, and did not know
the purport of the document by which she relinquished her right to
the land. The matter was the subject of a long hearing before the
Board of Trade. B. T. J., vol. xliii, pp. 52-56.
156 REVIEW OF COLONIAL LEGISLATION [^74
... in all matters of private property . . . are referred
to the decision of the Court of Law." ^
Laws for cutting off the entail, or, in other words, doing
away with the limitation of an estate to certain heirs, were
common in the colonies, because the king's writs for exe-
cuting a fine and recovery — the method observed in Eng-
land— were held not to run there. ^ No objection was made
to these acts provided the tenant in tail could have obtained
the same result by fine and recovery had he been in Eng-
land, and provided that all the parties interested gave their
free consent.^ Attempts to make entails perpetual, an ob-
ject in conformity with the earlier intent of English law,
though contrary to its later practice, were discountenanced
because they tended to " create a perpetuity " which the
law did not allow.* The legislature of Virginia passed
many acts authorizing the exchange of exhausted lands
held in tail, for fresh lands which might be either entailed
or in fee simple. Li behalf of the persons in whom rested
the prospect of remainder or reversion, the Board insisted,
not only that these lav/s have the consent of all persons
whose interests were affected, but also that lands taken in
1 A. P. C, vol. iv, p. 492; 2 July, 1761. A. P. C, vol. iv, p. 678; New
Hampshire, 20 July, 1764.
* Blackstone, Book II, p. in (Ed. Geo. Sharswood, Pa, 1870), ex-
plains the origin of the custom of leaving estates in tail, and of the
ways in which, upon grounds of policy, lands were gradually freed
from the encumberance, until in England, an estate tail differed but
little from a fee simple.
» CO/5-1054, Dd, 19; 7 January, 1727. CO/5-1326, V, 70; 6 May,
1745. Pennsylvania alone passed a general law for barring entails,
modeled upon the English custom of fine and recovery. Lamb pro-
nounced it conformable to the law of England, but thought that the
methods observed in other colonies were preferable. It v/as confirmed
May 13, 1751, A. P. C, vol. iv, p. 116. CO/5-1273, V, 78.
* CO/5-1330, Y, 112; Virginia, 12 November, 1763. CO/5-1330, Y,
128.
575] POLICY IN REVIEW 157
exchange for those entailed be of as great a yearly value,
and, except for the possible barring of the entail, subject
to exactly the same uses and legal limitations as had been
the original property.^
Colonial laws governing the proof of wills, and the
powers and duties of executors appear to have followed
closely the English precedents upon these subjects. South
Carolina attempted to make the process of proving wills
regarding real estate less tedious and expensive ; but Lamb,
while conceding that the change might make for conveni-
ence, recommended, in the interests of conformity, that the
law be disallowed, and that the province continue to use
the method observed in England and in the other colonies.^
Various attempts of the legislatures to order, upon consid-
erations of equity, the disposal of estates otherwise than as
directed by will, were held to constitute an encroachment
upon the proper domain of the courts, and an undue limi-
tation upon the inalienable right of every man to dispose
of property acquired by himself. It was enacted by New
Hampshire, for example, that if any child bom during the
life of a parent testator was not mentioned in the will, he
should receive the same proportion as though the parent
had died intestate.' Even more objectionable was a private
act of Massachusetts by which part of an estate entailed
to one of two brothers was directed to be sold, two-thirds
of the proceeds being devoted to the education of both
brothers, and the remainder being allotted to the mother.*
An act of South Carolina for " Settling the Estate of
» C'O/S-1320, R, 29. CO/5-1323. S, 18. CO/s-1366, p. 394. CO/s-
1366, p. 468.
* A. P. C, vol. iv, p. 486; 25 June, 1761.
* CO/5-915, p. 174- CO/s-867, W, 40; 27 August, 1718.
* Acts and Resolves, vol. vi, appendix, p. 161.
158 REVIEW OF COLONIAL LEGISLATION [576
Richard Beresford " made several alterations in a will,
taking part of the estate from one son and giving it to an-
other, and altering certain limitations and bequests. Before
recommending the disallov^ance of this law, however, the
Board obtained, in the interests of equity, a promise from
the favored brother to maintain and educate his half-brother
who had been neglected/ The legislature of New Hamp-
shire attempted to change an estate entailed to fee simple
upon a suggestion, unsupported by proof, that it had been
entailed by mistake in writing the will ; and Maryland ven-
tured, upon grounds of equity, to validate a document
made in the form of a will in the deceased's handwriting,
but neither witnessed nor published by him as such.^
Under the English common law the wife of an intestate
received one-third of the real property for life, while the
eldest son inherited the remainder to the exclusion of the
other children. In 1692 the assembly of Massachusetts
sanctioned a custom which prevailed throughout New Eng-
land by enacting that the wife should have one-third of the
intestate's realty for life, and that the remainder should be
divided in equal portions among the children, with a double
allotment to the eldest son. This law appears to have
passed the committee without special notice, and it was con-
firmed, together with thirty-four others, in 1695. Toward
acts of similar intent passed by other colonies during
this period, however, the Board was less lenient. Laws
of Pennsylvania and New Hampshire, the essential provis-
ions of which were identical with those of the Massachu-
setts act, were disallowed in 1706 upon the ground that
they were unreasonable, inexpedient, and would affect many
* CO/s-401, p. 95. B. T. J., vol. xlii, p. 39. A. P. C, vol. iii, p. 412 ;
8 August, 1734.
^ A. P. C, vol. iv, p. 256; New Hampshire, 21 June, 1754. CO/S-
1271, V, 13; Maryland, i November, 1703.
577] POLICY IN REVIEW 1 59
owners of land who were resident in England/ The attor-
ney general also took exception to a proposed law of similar
tenor which had been submitted by Virginia because it
"varied in several particulars from the laws in force here,"
and provided that in case the intestate died without issue,
the wife should receive one-half the estate, and the next of
kin to the husband the other, whereas under English law
she was entitled to the whole.^
Within the next few years, however, the Board aban-
doned its attempts to exact a strict conformity to the Eng-
lish law regarding intestates' estates, and conceded, by its
tolerance, the inadvisability of forcing the agrarian rules
of a long-established feudal regime upon a sparsely-settled
frontier. An act of Pennsylvania which was considered at
the Board in October, 1709, and allowed to remain in force,
provided, as did the Massachusetts law, that one-third of
the realty should go to the wife for life, and the remainder
be divided among the children with a double share to the
eldest son. The act contained as well the provision pre-
viously refused to Virginia, that in the absence of children
the estate should be equally divided between the wife and
the husband's next of kin.* In like manner no objection
was offered to an act of New Hampshire, passed in 1718,
by which " the course of Descent and Distribution " was
"greatly altered from that of England."* The judicial
» C'O/5-1263, N, 40. CO/s-912, pp. 156 and 159. A supplementary
law of Pennsylvania which permitted the sale of an intestate's realty
for the purpose of paying his debts, educating the children or improving
the remainder of the estate was disallowed at the same time because
it contained no exclusion of lands which had been conveyed by any
marriage settlement.
'CO/5-I3M, L, 17; IS August, 1704-
*Pa. Stats., vol. ii, p. 199; passed 12 January, 1705-6.
♦Report of Lamb upon a supplementary law, CO/5-926, B, 4; 17
March. 1747. CO/s-926, B, 17. CO/5-941. P- 226.
l6o REVIEW OF COLONIAL LEGISLATION [578
committee of the Privy Council, without consulting the
Board of Trade, annulled the Connecticut intestate law of
1699 t>y deciding for the appellant in the case of Winthrop
vs. Lechmere in 1728/ But this decision was reversed in
1745 after a second hearing, and the validity of the Con-
necticut act which was similar to that of Massachusetts,
was finally established. An intestate act of Virginia was
disallowed in 1751 because it had been passed in conse-
quence of an objectionable law which declared slaves per-
sonal property; and an act of North Carolina in 1764 be-
cause it allowed one-third of the realty to the wife and the
remainder in equal portions to the children without making
any provision for the legal representatives of children de-
ceased.^ Despite these exceptional cases, the Board of
Trade conceded, after the first decade of the eighteenth
century, practically all that the colonists desired in regard
to the settlement of intestates' estates, a course which con-
stitutes a rather marked digression from its usual insistence
upon a close conformity to English law.
Upon grounds of repugnancy the government consis-
tently rejected deviations from English law in regard to
the property rights of married women. Against an act of
Pennsylvania, it upheld their right to inherit a life interest
in one-third of the husband's real estate.^ An act of
1 Cf. supra, p. 105.
2 CO/5-1327, W, 55. A. P. C, vol. iv, p. 139; 31 October, 1751. CO/
5-299, E, 83. A. P. C, vol. iv, p. 683; 20 July, 1764.
» This law for " Acknowledging and Recording Deeds," provided
that no woman should recover her dower of one-third upon any lands
or tenements which had been sold by her husband during his cover-
ture, although she had been no party to the deed, and had in no way
consented to the sale. CO/5-1292, p. 148. CO/5-1264, P, 79', disal-
lowed 24 October, 1709. Another act of Pennsylvania provided, upon
the other hand, that if any absent husband should alienate or mort-
gage lands, except in certain cases of necessity, without making an
579] POLICY IN REVIEW l6l
Georgia was annulled simply because it allowed a married
woman, consenting to part with her right of dower by be-
coming a party with her husband to the sale of lands, to
sign and seal an acknowledgment of consent before a jus-
tice of the peace, whereas in England she could do this only
after a private examination before one of the king's
judges/ Upon the other hand, the crown uniformly dis-
allowed acts in which the legislatures took a position some-
what in advance of contemporary English law, by enlarg-
ing the control of married women over their own property.
Numerous private laws allowing women long deserted by
their husbands to sue and be sued, or to dispose of their
own property as though single, rested upon strong and un-
disputed grounds of equity. But they were held to consti-
tute too wide a deviation from the settled law of England,
and too great an encroachment upon the property rights of
absent husbands. However great the hardship upon the
wife, it was insisted that the husband's right to her prop-
€rty, both real and personal, should not be taken away by
an act of the legislature without his consent.*
In the interests of justice and conformity the English
government desired that the rules and methods of proce-
dure observed in colonial courts of law and equity should
differ as little as possible from the corresponding rules and
methods in Great Britain. The Quaker colonies, New Jer-
equivalent provision for his wife and children, the alienation should
be void. The king's counsel objected that this act would render titles
uncertain, but it appears to have been confirmed by lapse of time.
Chalmers, Opinions, p. 495. CO/5-1269, T, 22; 5 February, 1740.
• A. P. C, vol. iv, p. 489; 25 June, 1761.
' CO/s-1326, V, 42; Virginia. 1746. A. P. C, vol. v, p. 150; Massa-
chusetts, 29 June, 1768. CO/5-1328, W, 152; Virginia, 3 February,
1754. A. P. C, vol. iv, p. 558; Massachusetts, 16 March, 1763. B. T.
J., vol. Ixviii, pp. 273, 310: Georgia, 2 July, 1761. A. P. C, vol. iv, p.
674. New Hampshire, 20 July, 1764.
1 62 REVIEW OF COLONIAL LEGISLATION [580
sey and Pennsylvania, passed various laws allowing wit-
nesses, jurors and office-holders to qualify themselves by
taking a " solemn affirmation " in place of the customary
oath. The earlier acts of Pennsylvania were disallowed
because, contrary to the practice in England, they permitted
the taking of affirmations in criminal as well as civil cases,
and because the form prescribed did not contain the name
of Almighty God/ But after the accession of the Whigs
to power, the Board became more liberal in matters of re-
ligion. Upon the plea of absolute necessity in administer-
ing justice, both Pennsylvania and New Jersey were al-
lowed, after 1719, not only to sanction the use of the affir-
mation in criminal cases and as a qualification for office-
holders, but also to omit from it the obnoxious phrase
naming the Deity.^ This concession, somewhat grudgingly
made to communities where Quakers were in the majority,
the Board regarded as a great indulgence. In other colo-
nies the use of the affirmation was allowed only under the
same restrictions which prevailed in England, where per-
sons refusing to take the oath were disqualified from giving
evidence in criminal cases, serving as jurors, or holding
any office or place of profit.^
With a like solicitude for the virtue of all legal proceed-
ings, the Board refused to sanction a general use of affi-
^ A law for " Giving Evidence and Qualifying Magistrates " was dis-
allowed in January, 1708. CO/5-1263, O, 78. B. T. J., vol. xviii, p.
345; vol. XX, p. 21. A second act was annulled in December, 1711.
CO/S-1292, p. 330.
2 CO/5-995, p. 426; 27 January, 1718. B. T. J., vol. xxvii, pp. 87, 126.
CO/5-1293, pp. 172, 204. Pa. Stats., vol. iii, pp. 437-739- The words
" in the presence of Almighty God " were omitted from the English
affirmation in 1721. As a safeguard it was insisted that persons re-
fusing the oath in Pennsylvania and New Jersey should declare that
they did so because of conscientious scruples, and that for making a
false affirmation they should be liable for perjury.
' A. P. C, vol. iv, p. 407 ; Georgia, 3 March, 1759.
58l ] POLICY IN REVIEW — 163
davits as evidence in court. Their employment was con-
doned only in cases of utmost necessity in civil actions, and
after notice of their taking had been given to the other
side. The admission of depositions, said the Board in con-
nection with an act of Pennsylvania, . is "seldom allowed
in this Kingdom even in Civil matters, nor even then with-
out observing a more solemn and safe method of allowing
the same than what is [here] laid down, [and is always]
disallowed in criminal proceedings, because of the known
benefit of cross examining a witness, . . . which often by
an unexpected question discovers the truth, . . . and some-
times from the manner of delivering his testimony a jury
has not believed a witness." ^ Objectionable, also, were
methods of drawing juries which might p>ermit bribery or
intimidation,^ and regulations in regard to the form of
writs, or the manner of their serving, which were contrary
to the practice of England. South Carolina, because of
abuses committed by the provost marshals, changed the
first process at law from a summons to a capias. The
Board urged that the act be amended in this respect, " as
in our law processes a summons is always supposed to be
made in the first instance, . . . and the rather as it will be
the least expensive way of proceeding and ye most speedy
to obtain justice." *
* Report upon an act for " Giving Evidence and directing the Quali-
fication of Magistrates." It admitted as evidence in any case the depo-
sition of a person sick or leaving the Province. Pa. Stats., vol. i, p. 523.
CO/5-1264, P, 19; disallowed 8 January, 1707-8. CO/5-912, pp. 169,
186, 210; New Hampshire, 19 November, 1706. CO/5-1263, O, 78.
* C. S. P., i6g3-6, p. 84 ; Carolina, la April, 1693. A, P. C, vol. iv,
p. 405; Georgia, 3 March, 1759. CO/5-648, E, 25; Georgia, 19 May,
1 761.
' Board to Governor Johnson, CO/5-401, p. 17 ; 2 April, 1731. CO/
5-362, D, 25. Mass., Acts and Resolves, vol. i, p. 362. Note on ch. 5.
A. P. C, vol. iv, p. 676; New Hampshire, 20 July, 1764.
1 64 REVIEW OF COLONIAL LEGISLATION [582
The governors' commissions empowered them to estab-
lish courts of equity; and the crown imposed no' restric-
tions upon the rules of procedure to be observed therein,
except the usual stipulation that they be as nearly as pos-
sible conformable to those of similar tribunals in England.
The lack of equity courts, frequently complained of in the
colonies, seems to have resulted from the jealousy of the
assemblies respecting the powers exercised by the governor,
as chancellor, rather than from any objection to their estab-
lishment upon the part of the home government. Com-
ments upon laws made by the Board of Trade frequently
assume the existence of courts of chancery in the colonies;
while any express exclusion of equity in a colonial act was
sure to meet with objection.^
In some instances the government complained that newly
established courts and their mode of procedure made for
unnecessary delay and a needless multiplication of suits.
An act of Massachusetts provided that either after or be-
fore judgment was rendered by the supreme court, the
court of original jurisdiction could review the case again,
and that the third verdict obtained by either party should
be final, save for the right of appeal to the crown. This
^' so oft renewing of trials in the same case," with long
suspense in obtaining a final issue, the Board condemned
as too dilatory and vexatious.^ Upon similar grounds the
crown based its refusal of a supreme court for Pennsyl-
vania which, although limited as to original jurisdiction,
could draw from inferior tribunals " what business they
thought proper " by writs of error. Moreover, a provision
that the court of equity should neither try anything deter-
minable at common law, nor decide any question of fact
^ A. P. C, vol. V, p. 364; Antigua, 7 April, 1773.
2 CO/5-909, pp. 186, 239. CO/5-862, A, 59; 22 October, 1700.
583] POLICY IN REVIEW 165
without sending it to an issue at law, threatened to " make
proceedings in equity unsufferably dilatory, and to multiply
trials ... in the plainest cases to no purpose." ^
As a rule, however, the complaint was that the colonists
had missed the happy mean of English judicial procedure
and rendered justice uncertain, not by encouraging litiga-
tion, but rather by limiting appeals and intrusting summary
and final jurisdiction to incompetent courts. To colonists
in the back country justice necessarily became an attribute
of the local community rather than of the crown or even
of the province. The general lack of trained lawyers, the
expense and difficulties of travel, and the distrust of distant
courts, all contributed to enhance the functions of the local
justice. This fact English officials, accustomed as they
were to a settled and centralized system of jurisprudence,,
viewed with apprehensive disapproval. They beg^dged:
justices of the peace the power to perform marriages, and;
insisted that under no circumstances should they decide as.
to the validity of a title to real estate.^ In England ther
local magistrate, sitting without a jury, could decide cases
involving not more than forty shillings. Although the
Board seems not consciously to have formulated any rule
in the matter, this limitation was extended to the colonies
where its enforcement contributed to the disallowance of
many laws. In a moment of weakness the Board heeded
the urgence of the governor of New York and permitted,
not without misgivings, the confirmation of an act confer-
ring upon mayors, justices of the peace and recorders,
jurisdiction in cases to the value of five pounds in local
money. But later, when the amount permitted was raised
> CO/5-1264, Q, 37- CO/s-1264, Q, 42; 13 January, 1714.
* C'O/s-912, pp. 156-168, 210; New Hampshire, 19 November, 1706^
CO/s-1278, Z, 6. A. P. C, vol. V, p. 301 ; Pennsylvania, 26 May, 1771,
l66 REVIEW OF COLONIAL LEGISLATION [584
to ten pounds, the act was disallowed/ Besides cherishing
an instinctive dislike for arbitrary and partial determina-
tions at law, the Board was, in some cases, not unmindful
that the increased prestige of the justices would detract
from the usefulness and importance of the local courts of
common pleas, whose officials were appointed by the crown.^
With perverse and persistent fondness for " summary
and despotic justice," some of the colonies empowered
judges of the local courts to decide without jury cases in-
volving considerable sums. But here again the law officers
cited the English limit of forty shillings sterling and ob-
jected to larger amounts unless either of the parties could
upon request obtain a jury. An act of South Carolina
which empowered judges of the circuit courts to determine
in a summary way all disputes cognizable in their courts
for any sum not exceeding twenty pounds sterling, was dis-
allowed notwithstanding a provision that cases involving
land titles should be excepted, and that both parties, or
either party at his own expense, could secure a jury.'
JMorth Carolina conferred upon the judges of county courts,
1 CO/5-1070, Oo, 13, Oo, 18. 6*0/5-1129, p. 149; 14 November, 1759.
A. P. C, vol. V, p. 285 ; 9 December, 1770. In like manner New Jersey-
enjoyed for some years a five-pound limit, and attempted in vain to
raise the amount to ten pounds. CO/5-999, P- 232. A. P. C, vol. v, p.
309; 7 June, 1771. After considering a law of Massachusetts entitled
'*' Fence for Cattle," the committee decided in 1683 that controversies
under the value of forty shillings could be decided by a justice of the
peace. C. S. P., 1681-5, p. 415. A. P. C, vol. v, p. 329; Bahamas, 15
January, 1772.
^A. P. C, vol. iv, p. 407. B. T. /., vol. Ixv; Georgia, 22 No-
vember, 1758. This act gave an exclusive jurisdiction over cases of
less than ten pounds sterling to justices of the peace. CO/5-372, I, 66;
South Carolina, 13 February, 1750.
» CO/5-404, p. 383. A. P. C, vol. V, p. 166; 7 October, 1768. CO/S-
979. P- 27', New Jersey, disallowed 7 June, 1771. CO/5-304, K, 63;
iNorth Carolina, 3 February, 1775.
585] POLICY IN REVIEW 167
whom the Board characterized as ignorant and unfit, a
power over the settlement of estates and the care of orphans
— an encroachment upon chancery " not warranted by any
law or similar practice in this Kingdom." ^
In like manner the government regarded with disfavor
attempts to discourage litigation in appellate courts. To
the general features of a judicial system in North Carolina
which included county and district courts, the latter having
jurisdiction over civil cases involving more than ten pounds
current money, the Board gave its approval.* But when
Virginia raised the limitation upon the original jurisdiction
of her superior court from ten pounds to twenty, and im-
posed a new prohibition upon appeals in cases under ten
pounds, the act was disallowed, upon the ground that it
would cause great inconvenience and detriment to his maj-
esty's trading subjects," A law of New York which limited
the jurisdiction of the supreme court to sums exceeding
fifty pounds, was annulled with the comment that it was
"directly counter to the judicial policy of this country." *
The home government was no doubt guiltless of any desire
to encourage needless litigation. The law officers well real-
ized that only through able courts of review could the errors
and eccentricities of untrained judges and justices be cor-
rected, and a fair conformity with decisions of other colo-
nies and the mother country be secured. As Jackson ob-
served, where probably more than one hundred judges
* CO/s-324, pp. 299, 304, 306; 14 April, 1759.
» A. p. C, vol. iv, p. 502. This was disallowed upon other grounds,
December 14, 1761.
» A. P. C, vol. iv, p. 139; 31 October, 1751.
* A. P. C, vol. V, p. 284; 9 December, 1770. A like fate befel an act
of New York which prescribed a minimum of twenty pounds current
money and costs. But this law was also objectionable in that it gave
the court no power to extend a limited time allowed the parties for
pleading. CO/S-1124, pp. 57, 109; 26 May, 1719.
1 68 REVIEW OF COLONIAL LEGISLATION [586
were to determine, each according to his own notions of
justice, the laws of a country could be neither uniform nor
certain/
Eighteenth century England was at best suspiciously tol-
erant of foreigners. The benefits of naturalization were
limited to Protestants, and could be obtained only by virtue
of a special act of Parliament.^ Nor could any unnatural-
ized alien, unless he received letters of denization from the
crown, acquire or give title to real estate. Similar restric-
tions, it was assumed, ran against foreigners in the colo-
nies. Moreover, the government by enacting in the navi-
gation laws that no alien not naturalized or made a free
denizen should exercise the trade of a merchant or factor
in the plantations, sought to discourage unnaturalized for-
eigners from settling there. Despite these restrictions,,
many aliens not only migrated to the colonies, but also en-
gaged in trade and acquired an equitable title to lands.
Under these circumstances the necessity for some settled
and inexpensive method of naturalization was patent. The
colonists assumed that a power of granting naturalization
corresponding to that exercised by Parliament in England,
was vested in the assemblies, and enacted laws prescribing
the conditions under which the privilege would, upon appli-
cation, be granted to individuals by a special act of the
assembly. A Virginia law passed in 1671 provided that
" any stranger desiring to make this country the place of
their constant residence," could, upon petitioning the grand
assembly and taking the oaths of allegience and supremacy,
be admitted to naturalization, which was to confer all the
privileges of which a natural-born Englishman was cap-
» A. P. C, vol. V, p. 309- CO/5-979, P- 185. CO/5-304, P- 59-
2 Except, during the period from 1709 to 1712, when a general act
for naturalizing foreign Protestants upon their taking the oaths and
receiving the Sacrament in any Protestant church, was in force.
587] POLICY IN REVIEW 169
able.^ But the act which was drafted in England, sent over
by Culpeper and accepted by the assembly in 1680, took
this power from the legislature and vested it in the gover-
nor, and, with a view to the enforcement of the acts of
trade, provided that nothing therein should be construed to
extend any privileges contrary to the laws of England.'
This arrangement was continued by an act passed in 1707,
notwithstanding an objection from Attorney General Mon-
tague that it was " too great a power to be lodged in any
one person . . . though he be governor, to make aliens and
foreigners to be upon the same foot, as the natural-bom
subjects are." ' In the other colonies the assemblies passed
acts from time to time for naturalizing foreigners, or for-
eign Protestants, then resident. Although these laws were
generally allowed to remain in force, the Board several
times expressed doubts concerning their propriety, and
upon the basis of a ruling by the attorney and solicitor, it
assumed that they conferred no benefit outside the limits
of the province.* To settle doubts and define the powers
of the assemblies in the matter, Parliament passed an act
in 1740 which authorized the naturalization of foreign
Protestants in the colonies. As the requisites for eligibility,
it imposed a residence of seven years without an absence
of more than two months at a time, taking the oaths of
allegiance and supremacy, making the declaration and, with
the exception of Quakers and Jews, receiving the sacrament
• Hening, voL ii, p. 289.
• Hening, vol. ii, p. 464.
•CO/5-1363, p. 226; 20 August, 1707.
• Report of the Board upon letters of denization granted by Gover-
nor Fletcher, CO/s-725, p. 391 ; 27 October, 1698. This was based upon
a former opinion by Chief Justice North. Opinion of the attorney
general upon an act of New Jersey, CO/5-995, p. 450; 10 December,
1718. B. T. J.„ vol. xlv, p. 29; 2 March, 1736.
lyo REVIEW OF COLONIAL LEGISLATION [^88
of the Lord's Supper in some Protestant and reformed
congregation.^
The uncertain validity of land titles derived from aliens
who had acquired possession without being naturalized,
caused much complaint in some colonies. New York,
Pennsylvania, North Carolina and New Jersey all made
one or more attempts to confirm such titles by blanket laws.
Although the Board conceded the inherent justice of these
acts, it could hardly condone so sweeping a dispensation
from the consequences of a settled point of law. More-
over, they deprived the crown of a right to escheat lands
held by deceased aliens. Several acts for this purpose
appear to have remained in force despite objections from
the law officers, and one such, a law of New Jersey which
secured persons holding real estate under purchase of aliens
from any possible defect of title, was confirmed in 1772,
" His Majesty waiving his right of escheat for the sake
of quieting possessions." ^ Soon after, however, the gov-
ernment took this troublesome subject from the discretion
of the assemblies by issuing a general instruction to the
governors against assenting to any act for the naturaliza-
tion of aliens, or for establishing a title to real estate orig-
inally granted to, or purchased by, aliens antecedent to
naturalization.^
^ Pickering, Statutes, vol. xvii, p. 370, ch. vii, 1740. Quakers were
allowed to subscribe to a declaration of fidelity, and an act of Penn-
sylvania which extended this privilege to all Protestants having con-
scientious scruples against taking oaths, in other words to the Mora-
vians, was confirmed. A. P. C, vol. iv, p. 21 ; 17 December, 1746.
* A. P. C, vol. V, p. 379; I September, 1772. Report of the attorney
general upon an act of New York, CO/s-1123, p. 499; 27 January, 1718.
B. T. J., vol. xxii; 19 February, 1718. Lamb upon an act of
North Carolina, CO/5-300, F, 5 ; 28 October, 1764. Lamb upon an act
of Pennsylvania, which was disallowed September 2, 1760, CO/5-1275,
W, 45. CO/5-1076, p. 419; New York, 1771. CO/s-1074, p. 457.
^ A. P. C, vol. V, p. 552; 19 November, 1773. B. T. J., vol. Ixxx, p.
141.
589] POLICY IN REVIEW 171
In like manner the assemblies assumed and lost a juris-
diction in regard to questions of divorce. The common
law, although it recognized as valid an agreement of sep-
aration between a husband and wife, afforded no facili-
ties for divorce. Gradually, however, there had grown
up in England a regular procedure by virtue of which
those who could afford the expense were able to secure
divorces by act of Parliament. Such bills were intro-
duced in the Lords and heard by them practically as a
judicial matter. The petitioner was obliged to produce
upon oath a definitive sentence of divorce " a mensa et
thoro " obtained at his suit in the ecclesiastical courts,
while at the second reading he must attend and, if the house
saw fit, be examined at the bar.*
The first colonial act of divorce was passed by Jamaica
in 1739. When, after careful examination, the Board
found that no previous action had been commenced, nor
had any verdict for adultery been obtained at common law.
as was the custom in England, and that the fact of adul-
tery had not been positively proved, it concluded that the
legislature had not "conformed itself to the usual practice
in acts of this nature in Great Britain," and urged that the
law be disallowed.* The colonies enacted in all at least a
dozen acts of divorce. In the four years preceding 1760
Massachusetts alone sent seven, The majority of these
were granted to women because of adultery committed by
the husband, a concession as yet unknown in England,
where no wffe obtained a divorce by act of Parliament
until 1801. None were accompanied by adequate proof of
* Blackstone, bk. i, p. 441, note 26. Bryce, "Marriage and Divorce"
in Essays in Anglo-American Legal History, vol. iii, p. 823.
* A. P. C, vol. iii, p. 681. This act "To Dissolve the Marriage of
Edward Manning and Elizabeth Moore, and enable him to marry
again " was disallowed July 16, 1741.
172 REVIEW OF COLONIAL LEGISLATION [590
wrong-doing, while all were defective in that they dissolved
the marriage and conferred the privilege of re-marrying
with reference to only one of the parties to the original
contract/ These acts were not disallowed because it was
presumed that the parties released might have re-married.
But the Board was strongly of the opinion that no colonial
legislature had a power of passing laws of this nature, and
that they were consequently "of themselves null and void."
The whole question was referred to the attorney and solic-
itor general, with the suggestion that proper instructions
be formulated for regulating the conduct of the governors
in like cases. But the law officers failed to report, and
there, for the time being, the matter rested.^
In 1770 the Board received the first of several acts from
New Hampshire, New Jersey and Pennsylvania. Jackson,
who had recently become king's counsel, pronounced these
laws to be, in proper cases, " as agreeable to those of Eng-
land as might be, the circumstances considered." He took
advanced ground by urging the reasonableness and expe-
diency of allowing the dissolution of marriage by a sanc-
tion equivalent to that which had given it validity, at the
same time suggesting that the matter be referred to the
attorney and solicitor general.^ The Privy Council, how-
ever, regarded recent encroachments upon the part of the
assemblies with marked disfavor. Failing to receive any
report from the law officers, it disallowed an act of Penn-
sylvania to the end that it should be thought " that acts of
Divorce in the Colonies, more especially when there does
not appear to have been any suit instituted in any ecclesias-
tical court nor any verdict in any court of Common Law,
iC-O/5-888, li, 3 and 4. CO/5-919, p. 11; 31 July, 1759- CO/5-918,
pp. 486-490. Dickerson, Am. Col. Govt., p. 260, note 606.
* Board report, CO/s-918, p. 489; 1758.
' CO/5-1278, Z, I ; 10 August, 1770. A. P. C, vol. v, p. 365.
^Ql] POLICY IN REVIEW 173
are either improper or unconstitutional." ^ This was fol-
lowed by general instructions forbidding the governors'
assent to any acts for divorce, as well as for naturalization,
or the confirmation of land titles derived from unnatural-
ized aliens.
1 A. P. C, vol. V, p. 366. Pa. Stats., vol. viii, p. 5991 7 April, I773-
CHAPTER VI
The Policy of the British Government in Legisla-
tive Review : Attitude Toward Encroachments
UPON the Prerogative
The third major objection which the government
frequently made to colonial laws was that they " en-
croached upon the prerogative." Like the phrase "re-
pugnant to the laws of England," this also was loosely
applied to cover a multitude of irregularities; an inclu-
siveness due in part to a largeness and vagueness of con-
cept. For the term " prerogative " was made to convey
not only the sum of legal rights and privileges inherent
in the British executive, but also by implication, a sense
of the dignity and divine aloofness of the sovereign. It
was invoked against laws which threatened to impair the
necessary and proper supremacy of the crown in the
colonies, and to decrease the due sense of subordination
and dependence upon their part, which was consequent
to it. The prerogative served as a convenient barrier
against the increeping of liberal ideas, and could always
be used to justify the refusal of measures which in any
way threatened to alter the settled order of government
or to change the political status quo.
The government objected consistently to legislation
which was detrimental to the material interests or prop-
erty of the crown. It insisted that the proceeds from
all fines and forfeitures be reserved to his majesty,
although the legislature could specify the manner and
174 [592
593] POLICY IN REVIEW 17-
purpose of their expenditure.' In the settlement of
estates, debts due the crown must be given a priority to
all others ; and any disregard for his majesty's right of
escheat was deemed an infringement upon the royal pre-
rogative.'
Enactments regarding the collection of quit rents most
frequently brought the assemblies into conflict with the
pecuniary interests of the crown. Indeed, so jealous was
the home government of encroachment in this direction,
that it allowed comparatively few of the numerous quit-
rent laws submitted to go into operation. Against these
acts it was commonly objected that under color of regu-
lating quit rents they confirmed large grants of land to
favored persons, that the collection of rents was ill pro-
vided for, to the encouragement of default and evasion,
and that the values of subsisting rents were needlessly
diminished. 3 Several acts placed the crown under diffi-
culties in the recovery of forfeitures and arrears. A law
of Maryland, for example, provided that no orphan
should be sued in action of debt for arrears until five
years after attaining his majority.* An act of Virginia
did away with a provision for forfeiture after three years
of non-payment, and allowed the crown a double rent
and one moiety to the discoverer. Walpole, the auditor
general, thought the former penalty perhaps too severe,
but the latter certainly too lenient.' New York required
* CO/S-91S, p. 278. A. P. C, vol. iii, p. 125.
• CO/ 5-300, F, 5 ; 28 October 1764. CO/5-1074, p. 457 ; 5 June 1770.
•CO/5-401, p. 57; South Carolina, l November 1732. CO/5-362,
D, 18. B. T. /., vol. xlvii, p. 53. CO/s-402, p. 94; Georgia, 28 Febru-
ary 1744-
* CO/5-727, p. 96. B. T. /., vol. XX, p. 402. Disallowed 25 November
1708.
• CO/S-1319, O, 35 ; 13 June 1723.
176 REVIEW OF COLONIAL LEGISLATION [594
all actions for recovery to be prosecuted in the superior
court, thereby depriving the crown of its right to sue in
chancery.' Other laws permitted payment in paper
money or rated commodities, although the rents were
reserved in sterling or proclamation money.' The atti-
tude of the government toward quit rent acts was well
summarized by the lords commissioners of the treasury
when they reported that a law of South Carolina was
prejudicial to revenue, and "not proper for approbation,
the whole tenor thereof Encroaching upon the Royal
Prerogative." 3
Second only to the crown's apprehension for the
security of its revenue, was the solicitude displayed re-
garding encroachments upon its dignity or privilege.
Thus, a law of recognition passed as an act of fidelity
after the accession of a sovereign was considered pre-
sumptuous and unnecessary.* For similar reasons the
Board disliked to have the assembhes enact as law clauses
from his majesty's commission to the governor. An at-
tempt of Virginia to explain and amend a royal charter
was declared " unwarrantable, and highly prejudicial to
His Majesty's authority." ^ And because of his majesty's
^ CO/5-1126, p. 279; 23 May 1745- CO/5-371, H, 75-
* CO/5-IS19, O, 35 ; Virginia, 15 June 1723. An act of South Carolina
made the rents payable in produce at a rate to be fixed by three persons
appointed by the governor and council, and three to be appointed by the
assembly. CO/S-400, p. 285. CO/5-323, P- 285; 14 November 1731.
CO/5-323, p. 273; North Carolina, 26 June 1740. B. T. J., vol. Ixix,
p. 312; Virginia, 16 December 1762.
'CO/5-401, p. 57; I November 1732.
* Attorney General Harcourt upon an act of Maryland, Chalmers,
Opinions, p. 332; 17 December 1707.
5 CO/5-1328, W, ISO. A. P. C, vol. iv, p. 257; 21 January I754- But
a later act, enlarging the jurisdiction of a court beyond the limitations
established by a borough charter, was confirmed. CO/5-1331, Z, 88.
CO/5-1332, Aa, s; 26 June 1767.
595] POLICY IN REVIEW ^"^ lyy
undoubted right of " giving motion to his own royal
bounty," the king's counsel went so far as to suggest
that no laws affecting the rights of the crown should be
passed by a colonial assembly without the royal assent
having been first obtained.'
Many laws encroached upon the prerogative in that
the colonists presumed to regulate in acts of the legis-
lature matters which, by virtue of English precedent or
the governor's commissions belonged to the sole discre-
tion of the executive. Upon this ground the govern-
ment objected when acts establishing schools or colleges
failed to give the crown, through its governor, a custom-
ary right of visitation ; ' and as well, when South Caro-
lina intrusted the oversight of her fortifications, a task
imposed upon the governor by his commission, to com-
missioners of their own choosing.' Despite the insertion
of clauses saving his majesty's right, Virginia lost several
laws which authorized local communities to initiate fairs
or markets, the power to do this being '* undoubtedly a
branch of the Royal Prerogative," by "commission
vested in the governor."*
* Jackson upon laws validating the titles of aliens to real estate,
CO/S-1074, p. 457. CO/S-979. P- 49-
* Two acts for incorporating Harvard College were disallowed for this
reason, and also a Maryland law which was additional to an act for
erecting free schools. Acts and Resolves, vol. i, p. 39, ch. x. B. T. /.,
vol. viii, p. II. CO/5-908, pp S3, 124; 3 February 1699. C. S. P., 1693-6,
p. 636; 4 January 1696.
'CO/5-233, p. 70; IS November 1750.
*A. P. C, vol. iv, p. 138; 31 October 1751. CO/s-1327, W, 56.
CO/S-1326, V, 93. CO/5-1329, X, 24. A. P. C, vol V, pp. 163; 12 Au-
gfust 1768. The laws disallowed were also objectionable in that they
granted to persons attending such fairs an exemption from arrests,
attachments and executions, except for capital offences or breach of
the peace. The conferring of so sweeping an immunity was considered
repugnant to the laws of Elngland.
178 REVIEW OF COLONIAL LEGISLATION [596
The power to grant letters of incorporation lay well
within the disputed zone between the domain of the leg-
islature and the executive. The Board declared that
"Incorporations should arise from the bounty of the
Crown by letters patent, rather than by act of Assembly."
But notwithstanding this opinion they recommended for
confirmation acts granting incorporation to various pro-
jects of a pious, charitable or educational nature, among
which was a law of Pennsylvania which made the over-
seers of the poor in every township a body corporate to
take real or personal estates by deed or will.' Acts of
South Carolina and Massachusetts, incorporating in the
one case, the city of Charlestown, and in the other,
establishing a society for the propagation of Christian
knowledge among the Indians, were disallowed. But
in both cases the crown based its refusal upon the inex-
pediency of the project, rather than upon any undue pre-
sumption on the part of the legislature.^ Governor
Bernard and Governor Hutchinson both warned the Board
that their yielding to the assembly in this matter was
tending to a prescription against the king's right of
granting incorporation. But Jackson was of the opinion
that the power to incorporate had been vested in the
general court by the Massachusetts charter.3
An act of New Hampshire which gave absolute con-
M. P. C, vol. V, p. 103; 2 August 1750. A. P. C, vol. iv, p. 173;
South Carolina, 20 December 1752. CO/5-403, p. 218; South Carolina,
20 December 1757. CO/5-380, p. 161; 15 June 1770. CO /5-380, p. 187;
15 January 1772.
By extending the Bubble act of 1720 to the Plantations, Parliament
in 1741 forbade the granting of corporate privileges for business
purposes.
' CO/s-400, p. 164; 19 June 1723. Chalmers, Opinions, p. 395.
A. P. C, vol. V, p. 559; 20 May 1763.
» CO/5-891, LI, 33 ; 12 April 1762. CO/5-894, p. 365 ; 8 May 1772.
597] POLICY IN REVIEW 179
trol over the person and property of lunatics to local
overseers of the poor and select men was disallowed
because, without notice or care of the royal prerogative,
it deprived the crown of privileges enjoyed under Eng-
lish law. There custody was obtained by a commission
issued upon application to his majesty from a court of
chancery; and the yearly value of lands owned by subjects
born in lunacy was reserved to the crown. But the re-
peal of the New Hampshire act miscarried, and the law
remained in force until amended many years later. The
Privy Council not only disallowed the amendatory act,
but also ordered the Board of Trade to insert in the
commissions of all governors a clause giving them
power, as chancellors, to issue commissions for the cus-
tody of lunatics.' Another act of New Hampshire, for
regulating the manufacture of potash, was disallowed
because it tended to establish a monopoly — a privilege
conferred only by letters patent; while a law of Jamaica
providing for the stamping and issuing of money, and
making the counterfeiting thereof high treason, was held
to have established a mint — a power which had never
been delegated to any of the American colonies.'
The crown was particularly jealous of encroachments
upon its power to reprieve or pardon. In laws objec-
tionable upon this score. New Jersey twice extended
amnesty to persons concerned in disorders, without even
excepting any who might be guilty of high treason, the
pardoning of which was reserved to his majesty by in-
struction.3 And in an act granting compensation to the
'CO/s-915, pp. 163, 172; 27 August 1718. A. P. C, vol. V, p. 189;
26 May 1769.
* A. P. C, vol. V, p. 159; 12 August 1768. A. P. C, vol. iv, p. 455;
20 May 1760.
' N. Y. Col. Docs., vol. V, p. 46; 28 June 1708. CO/s-997, pp. 208-344;
June 1750.
l8o REVIEW OF COLONIAL LEGISLATION [598
sufferers from the riots in Boston incident to the stamp
act, Massachusetts unwarrantably incorporated a pardon
to all concerned/ Equally objectionable were acts in
which the assembly without exercising the power them-
selves, nevertheless limited the crown's opportunity for
doing so. This they did by enacting that a penalty should
be exacted without benefit of pardon, or that offenders
who failed after proclamation to surrender themselves
might be killed by any person at sight.^'
In many cases laws were considered inimical to the
prerogative in that they injured the standing and inter-
ests of patent officers by regulating and prescribing their
duties, or by depriving them of power or income. Offi-
cers of the customs were frequent sufferers from legis-
lative aggression. Massachusetts created a provincial
naval office with a general supervision over local ship-
ping.' Massachusetts and Pennsylvania both attempted
to establish ports of entry, a power vested in the lord
high treasurer and his subordinates by act of Parliament; *
while Virginia sought to impose three years residence as
a qualification for appointment to local customs offices.*
An act of Pennsylvania laid a penalty upon any customs
officer who should clear a vessel without a required cer-
tificate for the payment of lighthouse dues, a provision,
said the Board of Trade, which "would operate to con-
trol a Constitutional officer of the Crown in the exercise
of those duties which the laws of trade and navigation
M. P. C, vol. V, p. 86; 13 Ma> 1767.
'Board to Cornbury, CO/5-1120, p. 384; 4 February 1706. A. P. C,
vol. V, p. 317; West Florida, 15 January 1772. A. P. C, vol. v, p. 336;
North Carolina, 22 April 1772.
* B. T. /., vol. viii, p. 11. CO/5-906, p. 200; August 1695.
* C. S. P., 1700, pp. 475, 555.
•CO/5-1364, pp. 224, 253; 31 August 1715.
599] POLICY IN REVIEW l8i
require of him." ' The Privy Council disallowed a law
of North Carolina which vested the power of appointing
to benefices in the local vestries, notwithstanding the
fact that by the charter the right of patronage was given
to the crown and the king's governor/ An act of Mas-
sachusetts was annulled because it was prejudicial to the
office of the postmaster general, and to the rights of
Thomas Neale, who had been granted a patent to estab-
lish a post office in America.^ At the request of the
admiralty the Board complained to the proprietors of
South Carolina regarding an act which subjected officers
and judges of the admiralty courts there to unseemly
suits and penalties;* and it assented only with evident
reluctance to acts limiting the governors' right of ap-
pointment by conferring the power to nominate candi-
dates for sheriff upon the county courts, and as well to a
limitation of the sheriff's term of office, although its
duration in England had been fixed by an act of Parlia-
ment.' Claiming that the inhabitants had been need-
lessly prosecuted for trivial offences, the assembly of
New York passed a law which forbade the attorney-
general to institute proceedings save upon the present-
ment of a grand jury or an order from the governor.
For each violation of the act he became liable to a pen-
alty of one hundred pounds current money, which could
be recovered by an action of debt. The king's counsel
declared this "a very violent and extraordinary attack
'/i. P. C, vol. iv, p. 763; 18 June 1766. CO/5-1057, Ee, p. 54; New
York, December 1734.
* A. P. C, vol. iv, p. 408; 3 March 1759.
^ Acts and Resolves, vol. i, p. 117, ch. iii; November 1696.
* CO/S- 1 289, p. 344. C. S. P., 1702, p. 61 ; 3 February 1702.
*CO/5-975, G, 36; New Jersey, 30 September 1749. A. P. C, vol. v,
p. 166, South Carolina, 7 October 1768.
1 82 REVIEW OF COLONIAL LEGISLATION [600
upon the prerogative of the Crown, the right of the
Attorney General to file information having been dele-
gated from the King, and ever thought an essential and
necessary power."'
The governors's instructions impowered them, to-
gether with their councils, to regulate fees, and bade
them give all possible encouragement to patent officers
in the enjoyment of their legal and accustomed privileges
and emoluments. But frequent and widespread com-
plaints that local officials made exorbitant charges, an
evil for which there was no satisfactory remedy at com-
mon law, were followed by a strong popular demand for
the regulation of fees by acts of the assemblies. The
Board conceded that the royal instruction did not pre-
vent this, and almost all of the colonies passed laws for
the purpose. Patent officers in turn complained that the
fees prescribed were below those sanctioned by custom.
But, as a rule, they secured the disallowance of offending
laws only when they suffered obvious and continued in-
justice, for the Board of Trade regarded any reasonable
regulation of fees as a matter of domestic concern, and
interfered only when a lessening of income threatened to
defeat his majesty's intention in making appointments.''
In several instances laws were disallowed because the
amounts prescribed were so inconsiderable that they
rendered it difficult or impossible for patentees to live
^Chalmers, Opinions, p. 493. CO/5-1054, Dd, 76. CO/5-112S, p. 120;
6 November 1728. Many years later a less extreme act for the same
purpose was permitted to lie by. CO/s-1066, Kk, p. 40. B. T. J.,
vol. Ixvi, p. 6s; 14 February 1759. Attorney General Harcourt de-
livered an unfavorable opinion upon a similar law of Maryland, " Recti-
fying the Powers of Attorneys," CO/5-716, H, 48; 17 September 1707.
^ CO/5-672, p. 370; Georgia, 12 November 1755. A. P. C, vol. iv,
p. 311. CO/5-324, p. 241; North Carolina, 10 March 1757. CO/5-6S2,
p. 9; Georgia, 30 December 1773.
6oi] POLICY IN REVIEW— — 183
on their places, and served to discourage persons of
character and reputation from accepting office.'
By dint of many complaints and representations, Law-
rence, the Secretary of Maryland, secured an order from
the Board which commanded the assembly to restore to
his office the revenue from ordinary licenses, a perquisite
which it had enjoyed under Lord Baltimore.' The privy
council prevented the assembly of South Carolina from
abolishing the office of provost marshal by transferring
its duties to the sheriffs, until the patentee had received
security for the full value of his interest in the patent ;
and as the result of an attempt by Massachusetts to levy
an income tax upon the salaries of customs officers, the
governor was instructed to withold his consent in the
future from acts taxing incomes received from the crown. ^
At no point did the crown more firmly insist upon the
integrity of the prerogative than in maintaining its con-
trol over the assemblies. By their commissions and in-
structions the governors were impowered in the king's
name to issue writs for the election of members, to desig-
nate the time and place of sitting, and to prorogue and
dissolve the sessions as they saw fit. But the colonists,
who were ever disposed to regard their assemblies as
local parliaments, sought for them a freedom from ex-
ecutive control equal to that enjoyed by Parliament in
England. To this end they passed laws which prescribed
'CO/5-1121, p. 455. B. T. I., vol. xxi, p. 319; New York, disallowed,
15 December 1709. CO/5-996, p. 369. A. P. C, vol. iii, p. 454; New
Jersey, disallowed, 3 April 1735. CO/5-365, F, 54, F, 49. CO/5-401,
p. 202; South Carolina, disallowed, 21 April 1737. A. P. C, vol. iv, p. 9;
New Jersey, disallowed, 28 June 1749.
• CO/5-716, H, 44, 56, 75, 100. CO/5-726, p. 487.
*A. P. C, vol. iv, p. 59; 4 August 1748. A. P. C, vol. v, p. 167;
7 October 1768. B. T. /., vol. Ixxvi, p. 158. CO/5-893, p. 329. B. T. /.,
Ixxviii, p. 17; 30 January 1771.
l84 REVIEW OF COLONIAL LEGISLATION [6o2
the maximum period which should elapse between elec-
tions and fixed definite times of meeting, irrespective of
the governor's writ of summons. Without exception
these acts met with disallowance, or if they contained
suspending clauses, with refusal, upon the ground that
the right of calling and continuing an assembly at such
times and as long as seemed necessary for the public
service was the sole prerogative of the crown/ By an
amendment to a revenue law, Jamaica attempted to ob-
tain the crown's acquiesence to an annual sitting; while
North and South Carolina each ventured a biennial act.'
Far more numerous were the laws modeled upon the
contemporary rule in regard to Parliament, which re-
quired that a session be held at least once in three years.
New York, New Hampshire, New Jersey, Jamaica, Vir-
ginia and Georgia all made one or more vain attempts to
assure themselves of a triennial assembly.^ Although
the assemblies were usually summoned and dissolved
more frequently than these laws required, the Board in-
sisted that no pretence of right could be deduced from
the usage.
The government required that members of the as-
sembly should be freeholders, duly elected by the major
^Chalmers, Opinions, p. 343. CO/5-323, p. 257. A. P. C, vol. iii,
p. 568; North Carolina, 21 July 1737. CO/S-1059, Gg, 19. A. P. C,
vol. iii, p. 617; New York, 30 November 1738. CO/5-1330, Y, 83;
Virginia, 17 May 1763. A. P. C, vol. v, p. 286; Virginia, 9 December
1770.
*5. T. I., vol. iv, p. 74; I November 1682. A. P. C, vol. iii, p. 568.
A. P. C, vol. iv, p 141.
» N. Y. Col. Docs., vol. iii, p. 358 ; March 1685. B. T. L, vol. xxxvii,
p. 1631 New Hampshire, May 1728. CO/5-941, p. 279; New Hampshire,
9 July 1752. A. P. C, vol. iii, p. 343; New Jersey, 25 November 1731.
B. T. J., vol. Ixvi, p. 108; Jamaica, 1741. CO/5-1330. Y, 83; Virginia,
17 May 1763. CO/5-674, p. 347; Georgia, 23 November 1770.
603] POLICY IN REVIEW 1 85
part of the freeholders or men of assured yearly income
in the respective townships or parishes.' Within these
bounds the colonists appear to have exercised a rather
limited discretion." Nor were they allowed to exclude
office holders. An act of South Carolina, which pro-
vided that no person holding any other office should
serve as a member of the assembly, was disallowed, partly
for other reasons.^ New York attempted to disqualify
judges upon the ground that executive and legislative
powers ought not to be vested in the same persons.
Judges, it was urged, could not sit in the House of Com-
mons, and in the assembly they had often become leaders
of factions. The act was disallowed, nevertheless, be-
cause it affected the prerogative, and did upon " reasons
not applicable to the state of the colony, make a very
essential alteration in its constitution."* In 1773 the
Board conceded to Virginia the right to disqualify sheriffs
and inspectors of tobacco during their continuance in
office. But it objected to a clause which continued their
disability for two years thereafter.'
Questions propounded to the law officers indicate that
the Board of Trade was not certain whether the enact-
ment of a law conferring upon a local community the
right of representation in the assembly conflicted with
the governor's power to summon members by writs
M. P. C, vol. iv, p. 217. This rule did not obtain in South Carolina,
where a law enacted during the proprietary regime was allowed to
continue in force.
'C. 5. P., 1693-6, p. 84; South Carolina, 12 April 1693. CO/5-994,
p. 204; New Jersey, 4 February 1706. A. P. C, vol. iv, p. 49; Jamaica,
30 June 1748.
' A. P. C, vol. iv, p. 49 ; 30 June 1748.
* A. P. C, vol. V, p. 244; 6 June 1770.
» CO/5-1369, p. 324.
1 86 REVIEW OF COLONIAL LEGISLATION [604
issued in the king's name; and, as well, whether by
virtue of that power, the governor alone could authorize
the sending of representatives/ Notwithstanding this
uncertainty, the Board seems to have conceded that the
assemblies could pass such laws provided they did not so
word them as to preclude the governors from issuing
writs, or to convey thereby any other power than that
of demanding a writ upon proof of qualification/ But,
as a matter of fact, the home government early became
alarmed at the continual growth of membership in the
lower houses and forbade the governors to assent to
further increase without the insertion of a suspending
clause/
In 1742 Governor Shirley of Massachusetts com-
plained that the enlarged membership of the house, due
to the continual division of townships and the settlement
of new territory, rendered it unwieldy and caused it to
overshadow the council, thereby destroying the proper
balance between the two bodies established by the char-
ter. The Board concurred in these views and instructed
him not to pass any further act erecting a new township
or dividing an old without insisting upon a suspending
clause. Inasmuch as Massachusetts claimed under its
charter an exemption from suspending clauses and re-
fused to insert them, this command amounted to a pro-
hibition, and the membership of the house remained
without further increase for several years."* In 1761 the
^B. T. J., vol. xxxviii, p. 152; 30 May 1729. CO/5-323, p. 370;
7 May 1753.
* CO/5-941, p. 212; 3 February 1749. A. P. C, vol. v, p. 29. B. T. /.,
Ixix, p. 169.
'CO/5-973, F, 34; New Jersey, 26 May 1739.
* CO/5-^3, Ee, 70. CO/5-918, pp. 90-94, 109. An act " Errecting the
Township of Lincoln" escaped disallowance in 1756 because it had
605] POLICY IN REVIEW 187
Board admitted that this restriction was in conflict both
with the charter and with an act of the assembly which
had been confirmed, by virtue of which every township
was entitled to send either one or two representatives,
according to the number of its freeholders. The Board
accordingly withdrew its instruction and advised the
governor to obtain, whenever possible, acts conferring
upon newly-organized districts all the privileges of town-
ships except that of sending representatives.'
Meanwhile the Board twice interfered to end local
disputes between a governor and an assembly regarding
laws for the erection of towns or counties. New Hamp-
shire passed several acts which so regulated the sending
of representatives as to preclude the governor from issu-
ing writs. The assembly having refused to modify them,
the Board recommended five laws for disallowance, with
the expectation that in their place the governor would
issue charters of incorporation. But the assembly
yielded the principal points of contention, and the affair
gave place to more important concerns of French and
Indian warfare.' In 1754 an act of North Carolina for
"Ascertaining the number of Members of the Assembly"
caused the Board to take cognizance of a dispute between
the northern and southern counties as to their respective
representations. Thirteen laws for erecting counties
were disallowed, and Governor Dobbs was instructed to
pass only such acts for this purpose as did not impower
already been carried into operation. But a similar law " Errecting the
Township of Danvers" was declared void. CO/5-913, p. 330. CO/5-
919, P- II.
' A. P. C, vol. iv, p. 475. CO/s-920, pp. 130, 140, 174-183- CO/5-891,
p. 349-
*CO/s-94i, pp. 212, 226, 364. Board report, CO/S-941, p. 267;
9 July 1752.
1 88 REVIEW OF COLONIAL LEGISLATION [606
the sending of representatives. He proceeded to grant
charters of incorporation; but the inhabitants insisted
upon their right to representation, and in some cases
held elections without writs. There followed a long
period of contention during which neither side appears
to have scored decisively; but the plan of incorporation
proved by no means a success.^
In 1767 the Board made a strong representation in re-
gard to the enactment of laws operating " to the augmen-
tation and Encrease of the Representative Body [and]
leading to . . Inconveniences . . . found to arise from the
Encreasing Greatness and Disproportion of the number
of that Branch of the legislature." The Privy Council,
perforce, allowed eighteen acts of Massachusetts for
erecting townships, to He by ; but three laws from New
Hampshire, Nova Scotia and South Carolina it dis-
allowed. Furthermore an instruction strengthening the
control of the executive over the legislature, already
issued to some colonies, was made general. Henceforth
governors were not upon any pretence to assent to a
law by which the number of the assembly was enlarged
or diminished, the duration of it ascertained, or the qual-
ification of the electors or the elected, fixed or altered. ="
Nothing could reveal more plainly the distrust and ap-
prehension with which the government viewed the
"leveling tendencies" at work in the colonies, and the
alarm with which it noted the continual encroachments
made upon the prerogative by the only branch of the
provincial governments which was responsive to popular
sentiment.
* CO/5-323; 14 March 1754. B. T. J., vol. Ixii ; 11 April 1755.
CO/5-297, C, 91. CO/5-298, D, 60. CO/5-325, C, 74. CO/5-297,
E, 52. B. T. J., vol. Ixix, p. 169.
' B. T. I., vol. Ixxv, p. 16. A. P. C, vol. v, 25-34. N. Y. Col. Docs.,
vol. vii, p. 946.
6o7] POLICY IN REVIEW -^ 189
In theory the king, as the fountain of justice, was the
source of authority for both courts and judges, and ac-
cordingly the governors' commissions impowered them
to erect the one and to appoint the other. But in ob-
taining appropriations requisite for the payment of sala-
ries and the maintenance of judicial systems, the crown
was dependent, for the most part, upon the assemblies.
This fact goes far to explain why the provincial courts
were established and regulated by law, despite the
Board's repeated assertions that the power to do this
was the unalterable prerogative of the crown.' It was
assumed, nevertheless, that this privilege was delegated
from the king and exercised only by his forbearance.
Nor could the assemblies in any way restrain him from
constituting courts other than those authorized by pro-
vincial law if he saw fit.' The government did insist
that the appointment of judges and justices should be
vested without restraint in the king, and not in the
assembly, or in the governor with the advice of the coun-
cil and assembly.3 With the alleged purpose of obtain-
ing appointments for particular individuals, the legisla-
ture of North Carolina enacted that no person should
become a judge or justice save barristers of five years
standing in one of the Inns of Court in England, who
had practiced in the courts of that or some other colony.
But this was deemed " an unconstitutional restraint upon
the power of appointing judges."*
' CO/s-1314, L, 17. CO/5-912, p. 169. Acts and Resolves, vol, ii,
p. 34, note on ch. xx. A. P. C, vol. iv, p. 218 Jamaica, 28 February 1754.
'CO/s-1362, p. Ill ; Virginia, 26 March 1707.
*A£ts and Resolves, vol. i, p 418, note on ch. ii. CO/S-1326, p. ill.
CO/5-324, p. 300. CO/5-305, p. 89. B. T. I., vol. xliv, pp. 177-187;
South Carolina. CO/s-401, p. 150; n August 1735.
*A. P. C, vol. iv, p. 504; 14 December 1761.
I90 REVIEW OF COLONIAL LEGISLATION [608
In several colonies the assemblies, following the Eng-
lish act of Settlement, sought, while granting judges
permanent salaries, to change the tenure of their com-
missions from during " His Majesty's Pleasure " to dur-
ing " good behavior." When Jamaica led the way in
1 75 1 the Privy Council condemned the change as one
affecting the royal prerogative in a point of great mo-
ment. Even assuming that there had occurred any
abuse of power to justify such an innovation, the report
continues, it were " more suitable to Your Majesty's
Honor and dignity to reform it by Your own authority,
which is fully sufficient for the purpose." ' Acts of sim-
ilar intent from Pennsylvania, New York, North Caro-
lina and South Carolina met with no better success. In
reporting upon the New York law, the Board of Trade
observed : "The granting of Judges' Commissions during
good behavior ought to be discountenanced, . . as subver-
sive of the Interest of the Crown and people, and tending
to lessen that just Dependence which the Colonies ought
to have upon the government of the Mother Country."
Following the disallowance of this act in 1761, instruc-
tions were sent to all governors forbidding their assent
to laws of like nature.''
In some instances laws in regard to courts were held
to trench upon the prerogative in that they hindered
the exercise of his majesty's right of allowing appeals
from colonial courts to the King in Council. Massa-
chusetts was bidden to correct a law which prevented
appeals in real actions.^ New Hampshire and Maryland
M. P. C, vol. iv, p. 216; 28 February 1754.
^B. T. /., vol. Ixviii, pp. 348, 384. CO/5-1275, W, 45. A. P. C,
vol. iv, p. 502; North Carolina, 14 December 1761. A. P. C, vol. v,
p. 166; South Carolina, 7 October 1768.
^ CO/s-907, p. 75 ; 10 December 1696.
6o9] POLICY IN REVIEW 191
each prohibited appeals in cases involving less than three
hundred pounds sterling; and without objecting to the
sum named, the Board nevertheless insisted that no
obstruction should be placed upon the royal privilege to
hear cases of less value if the crown pleased." From a
special court established in the Bahamas any appeal to
the Privy Council was expressly prohibited, a provision
deemed " altogether inconsistent with the constitution
of the Colony." =■
Many laws were disallowed because in passing them
the colonial legislatures had usurped functions properly
belonging to the king's courts of justice. Such were the
acts by which Massachusetts passed sentence upon sev-
eral of her citizens for engaging in illegal trade with the
hostile French. 3 Jamaica, upon the other hand, reversed
the decision of a court of law and declared the prisoner
free.* The assembly of New Hampshire persisted in
passing upon the validity of contested land titles, a prac-
tice "so unconstitutional and unjust" that in 1764 the
Privy Council disallowed sixteen laws at one time, " in
order to deter the legislatures . . . from assuming powers
and taking cognisance of matters that do constitutionally
belong to courts of justice alone."' The assemblies also
attempted to redress injuries inflicted upon private per-
sons by fraudulent lotteries, and to compel performance
* CO/s-912, pp. 169, 186, 210; New Hampshire, 19 November 1706.
CO/5-716, H, 48. CO/5-727, p. 251. A. P. C, vol. ii, p. 633; Maryland,
14 June 1711.
M. P. C, vol. V, p. 329; 1772. C. S. P., 1681-5, p. 185; Virginia 1682.
CO/5-1362, p. in.
» CO/5-912, p. 354.
*A. P. C, vol. iv, p. 412; 29 March 1759.
»/4. P. C, vol. iv, p. 674; 20 July 1764. CO/5-942, p. 266. A. P. C,
vol. V, p. 160. A. P. C, vol. iv, p. 490; Georgia, 2 July 1761.
192 REVIEW OF COLONIAL LEGISLATION [6io
in cases of alleged breach of contract.' They lost no
opportunity of enlarging their control over the granting
and expending of provincial appropriations, thereby ham-
pering the executive in its appointment of officials and
conduct of the government. Massachusetts, Barbadoes
and South CaroHna all attempted to supply the revenue
by means which deprived the governor of power to sign
warrants for issuing money.'' In 1751 the Board com-
plained of the power wielded by the assembly of New
York by virtue of its practice in granting supplies for
one year only, and of making salaries payable only to the
present incumbent of offices.^ South Carolina passed an
act whereby all civil officers who received any salary from
the provincial treasury were to be nominated, appointed
and removed only by the general assembly — a provision,
said the king's counsel, which " cuts up at the roots all
the king's prerogative, and bars the Crown from ever
intermeddling with any of the civil employments."* The
attitude of the Board of Trade in regard to this whole
matter received its strongest statement in a representa-
tion of July 24, 1760, upon several acts of Pennsylvania.
In passing these laws the assembly had encroached not
only upon the power of the executive, but also upon the
material interests and charter rights of the proprietors.
After rebuking them for lack of firmness in maintaining
their rights, the Board urged them to be mindful in the
future of their duty to restore the constitution of the
^ A. P. C, vol. iv, p. 684; New Jersey, 20 July 1764. CO/5-1296, p. 201 ;
Pennsylvania, 29 April 1768. A. P. C, vol. v, p. 31 ; Massachusetts,
26 June 1767.
'Acts and Resolves, vol. ii, p. 574. A. P. C, vol. iii, p. 203, Bar-
badoes, 1728. A. P. C, vol. V, p. 229; South Carolina, 1770.
'^0/5-1127, pp. 48, 216; 2 April 1751.
*C0/S-37I, H,S7.
6ii] POLICY IN REVIEW 193
colony to its proper principles, " to check the growing
influence of the assembly, and to distinguish what they
are perpetually confounding, the executive from the leg-
islative parts of the government." " Nothing," said their
Lordships, "is so likely to preserve the tranquility of
the Province or its dependence on the mother country
as maintaining with a strict and steady hand the neces-
sary powers and just prerogatives of the Crown It
is in vain to negotiate away His Majesty's prerogative,
every new concession become[s] the foundation of some
new demand and that [demand] of some new dispute."'
* CO/5-1295, pp. 295-385 ; 24 June 1760. B. T. /., vol. Ixvii, p. 141.
CHAPTER VII
The Policy of the British Government in Legisla-
tive Review,: Attitude Toward Laws
Deemed Inexpedient
Aside from considerations of trade, conformity and
prerogative, the Board of Trade weighed laws, and
sometimes recommended their disallowance, upon
grounds of mere expediency. If an act was considered
objectionable upon other grounds the question of its ex-
pediency received, as a rule, scant mention. The opinion
of the Board that an excessive issue of paper money in-
jured the British merchants, for instance, was paramount
to the belief that it was inimical as well to the economic
interests of the colonists themselves.
In reviewing laws upon certain subjects which did not
involve questions of imperial policy, however, the Board
appears to have acted with a single eye to the well-being
of the colonial inhabitants. Upon this ground, for ex-
ample, was based the consistent disapproval accorded
after 1760 to acts authorizing lotteries. After having
accepted these ventures as a matter of course, the Board
came gradually to discourage their organization for pur-
poses of private gain, or for the accomplishment of un-
important public undertakings. And by a general in-
struction of 1769 their establishment without previous
consent from the crown was prohibited altogether.'
^ CO/5-1068, Mm, 61. CO/5-921, 44. CO/5-225, C, 195. CO/5-999,
p. 185. B. T. J., vol. Ixxvi, p. 48.
ip4 [612
613] POLICY IN LEGISLATIVE REVIEW 195
The raising of money by lottery, said the Board in one
of its representations, "ought by no means to be En-
couraged, as obviously tending to disengage and mislead
Adventurers therein from Industry and Attention to
their proper callings and Occupations, and introducing
a spirit of Dissipation prejudicial to the fortunes of In-
dividuals and the Interests of the Public." '
Upon grounds of local welfare the Board discouraged,
also, acts for lowering the current rate of interest. The
price of money being of necessity high in a new country,
it was feared that a low return would prohibit lending
and retard the economic development of the colony.'
And in passing upon laws in regard to the granting of
lands the crown, apart from its solicitude for the security
of quit rents, sought to prevent conditions which might
injure the colonies by retarding their settlement. To
this end it confirmed an act of New York for vacating
several exorbitant grants of land, notwithstanding a most
careful and elaborate presentation of their case made by
the grantees. 3 Lest all lands ungranted should " fall
into a few rich mens' hands and be a discouragement to
settlement " it disallowed acts of Virginia which, by
allowing an unlimited number of patents to the same
person and neglecting to oblige reasonable cultivation,
* A. P. C, vol. V, p. 186. This representation of March 7, 1769 was
upon an act of Pennsylvania for " Raising by Lottery 5,250 pounds for
purchasing a Public Landing and paving the streets of Philadelphia."
The act was allowed to remain in force because it had been carried
into effect; but its consideration led to the general instruction forbid-
ding the future enactment of similar laws.
*A. P. C, vol. V, p. 40s; New Jersey, 20 February 1775. A. P. C,
vol. V, p. 159; New Hampshire, 12 Aug^ust 1768. A. P. C, vol. v,
p. 282; New Hampshire, 9 December 1770.
'CO/s-1044, p. 130. CO/5-1121, p. 83. B. T. I., vol. XX, p. 232;
26 June 1708.
196 REVIEW OF COLONIAL LEGISLATION [614
would have entitled the owner of one hundred slaves to
take nineteen thousand acres/ It was objected also
against quit rent acts of North Carolina, South Carolina
and Georgia that in addition to weakening the security
of the rents, they would discourage settlement.
As the patron of religion, the government encouraged
the enactment of laws enforcing the humane treatment
of slaves, the suppression of vice and immorality and the
erection and maintenance of schools.^ At the instance
of the Bishop of London, the Board even objected to an
act of Virginia which relieved youths of from fifteen to
twenty-one years from punishment for absenting them-
selves from church and for immorality.^ In colonies
which established the Church of England, it insisted that
the general supervision of the clergy be vested in the
Bishop of London rather than in the local vestry, and
that a more or less adequate provision be made for min-
isters.* In no colony, on the other hand, did the gov-
ernment attempt to compel the establishment of the
EngHsh Church, or to impose tests which would exclude
dissenters from office. Because of local conditions it
permitted Quakers a somewhat more extensive use of
the affirmation than in England, and, when they were
called to its attention, it consistently disapproved of laws
by which the dominant sect in any colony ventured to
oppress the others.
^ CO/5-1362, p. 117. B. T. /., vol. xix, p. 153. This act for "Grant-
ing, Seating and Planting" was disallowed April 17, 1707. CO/s-1363,
pp. 249, 266. B. T. I., vol. XXV, p. 436. CO/S-1364, p. 375; 30 May
1 7 16.
* B. T I., vol. iv, p. 213. CO/5-403, p. 76. CO/5-996, p. 147. A. P. C,
vol. iii, p. 153.
^B. T. /., vol. xix, p. 187; 26 May 1707. CO/5-1362, p. 232.
* CO/5-299, E, 51. CO/5-325, p. 201; North Carolina, 3 June 1762.
CO/5-205, p. 45. A. P. C, vol. V, p. 100; 26 June 1767.
6i5] POLICY IN LEGISLATIVE REVIEW jgy
Noteworthy among acts of this type was that for the
** Service of God, and the Establishment of the Protestant
Religion " which was thrice disallowed and was thrice
re-enacted by Maryland. By declaring that the acts
passed for this purpose in 1692 and 1695 enacted in too
sweeping and unwarranted a fashion the laws of Eng-
land, the government avoided taking cognizance of the
religious controversy in the colony.' A third law, passed
" without any material alteration in anything for which
the former had been disallowed," compelled the use of
the prayer book and the administration of the Sacra-
ments according to the Church of England, in all places
of worship.' Catholics and Quakers protested strongly
against being deprived of liberty of conscience and taxed
for the maintenance of the English Church. Mindful of
previous failures, the Board drafted a bill " agreeable to
the toleration allowed here " which contained a clause
repealing the law then in force. This they transmitted
to the colony for enactment, together with instructions
that meanwhile the present law " be not too rigorously
executed." 3 Shortly after the colony passed two acts,
aimed "to check the insolent extravagences of priests."
The first forbade all ministrations by Catholic priests,
while the second suspended for the period of eighteen
months as much of the former as applied to private
families. But the Privy Council, remarking that the
rigorous execution of such acts would tend " to depopu-
late that profitable Colony," disallowed the first and
> C. 5". P., 1693-6, p. 636. CO/s-725, p. 441-
* C. 5'. P., 1700, p. II. C. S. P., 1701, pp. 26, 78. Moreover the vestries
were made closed corporations and possessed with excessive powers.
* B. T. J., vol. xiii, p. 441. C. 5". P., 1701, pp. 211, 300. The new law,
duly enacted and found agreeable to the draft sent over, was confirmed,
CO/s-726, p. 170. CO/S-715, p. 71, E, S3; 18 January 1703.
igS REVIEW OF COLONIAL LEGISLATION [6i6
ordered the governor to secure from the assembly an
indefinite continuation of the second.^
In 1718 an act of Virginia containing severe discrimi-
nations against Quakers was disallowed with the similar
remark, that "if put in execution it would prove very
injurious to the Colony by banishing a great number of
industrious inhabitants." ' With a like solicitude for the
rights and welfare of the minority, the crown ordered
the Carolina proprietors to repeal an act which decreed
that members of the assembly should conform to the
Church of England. ^ And it several times intervened in
the interests of Quakers, Baptists or member of the
Church of England who were being taxed for the sup-
port of " orthodox " ministers in Massachusetts. ■♦ In
this case interference was based upon the ground that
inasmuch as the charter granted liberty of conscience to
all Christians except Catholics, taxes levied by act of the
legislature for the support of Congregational ministers
in townships where that sect constituted a minority were
unwarranted and illegal.
^CO/s-715, G, 12. B. T. J., vol. xviii, p. 149. CO/S-726, p. 354-
A. P. C, vol. ii, p. 497; 3 January 1706.
" This act for " Prohibiting Unlawful assemblings of Quakers "
was passed in 1663 and escaped observation until 1718. It prohibited
shipmasters from importing any Quaker more than fourteen years of
age, and forbade Quakers assembling for religious worship, under
penalty of heavy fines, and upon the third offense, of banishment.
CO/5-1365, p. 36. CO/5-1316, p. 44. B. T. J., vol. xxvii, p. 121;
13 February 1718.
' CO/s-1263, O, 63. A. P. C, vol. ii, p. 506; 10 June 1706.
*Two acts taxing the Quakers of Dartmouth and Tiverton were
disallowed in 1724, while several laws prejudicial to the Church of
England were allowed to stand only because they had been confirmed
by the charter. CO/S-91S, P- 400. CO/s-878, Bb, 157- A. P. C, vol.
iii, p. 491 ; 2 February 1736. One law was disallowed upon the petition
of Anabaptist settlers. A. P. C, vol. v, p. 323; 31 July 1771.
6i7] POLICY IN LEGISLATIVE REVIEW 199
In two instances, however, the crown acted otherwise
than as a champion of tolerance. A law of West Florida
was disallowed because it permitted the free exercise of
religion to Catholics, " a sect proscribed by several acts
of Parliament in all Dominions of the Crown." And the
Privy Council annulled the founding of a college under
Presbyterian auspices in North Carolina upon the re-
commendation of the Board, who, while sensible of the
** tolerating spirit " generally prevailing throughout the
dominions, doubted whether it was advisable " to add
encouragement to toleration " by assenting to an estab-
lishment which promised advantages to Dissenters.*
The power of veto rendered the Crown a virtual
arbiter in frequent disputes arising from the conflicting
interests of neighboring colonies. New York and New
Jersey sought to adjust a boundary controversy, first by
an informal agreement embodied in an act of New Jersey,
and, failing in this, by a law of New York which submit-
ted the matter to his majesty for final determination.
But the Crown, solicitous both for the security of private
property and for its own interests in the escheats and
quit rents of New York, rejected both laws and insisted
upon the appointment of a royal commission from the
decision of which parties aggrieved could appeal to the
King in Council.' Of less importance was a controversy
* CO/s-577, C, 29. A. P. C, vol. V, p. 286; West Florida, 9 December
1770. CO/5-326, pp. 188-199. A. P. C., vol. V, p. 338; North Carolina,
22 April 1772. The latter act was also objectionable in that it laid a
tax upon one particular county.
*CO/s-997, pp. 386-8. A. P. C, vol. iv, p. 214. CO/S-1129, p. 12.
A. P. C, vol. iv, p. 301; 24 June 1755. A. P. C, vol. iv, p. 686;
20 July 1764. The matter was finally settled by the confirmation of
acts from both colonies, accepting the commission's decision and with-
drawing the appeals which had been entered from its findings. A. P. C,
vol. V, p. 45; I September 1773.
200 REVIEW OF COLONIAL LEGISLATION [6i8
which arose between Georgia and certain citizens of
South Carolina. Georgia imposed requirements of set-
tlement and cultivation upon the owners of land within
her borders, some of whom derived their titles from
previous grants of doubtful validity made by the gov-
ernment of Carolina. The grantees, who were citi-
zens of the latter province, objected that the Georgia act
prescribed terms other than those upon which the lands
had been granted, that the determination of titles rested
wholly with the governor and council of Georgia, and
that owners were allowed but six months in which to
establish their claims. The Privy Council adjusted the
matter by disallowing the offensive act of Georgia, and
by ordering that the governor of South Carolina transmit
to Georgia copies of the patents in question, together
with all the proceedings thereon. Georgia, in turn, was
instructed to pass a new law for the cultivation of lands,
and to establish a court for the substantiation of claims.'
The great majority of inter colonial differences which
found their way into law were caused by an attempt of
one colony to tax or limit the trade of a neighbor.
Maryland imposed a levy of ten per cent, upon English
goods passing through her territory to Pennsylvania,"
New Hampshire offended Massachusetts by an export
duty upon timber and boards, and the latter retaliated by
imposing duties both upon goods imported from New
Hampshire and those exported thither.^ A New York
duty upon tonnage proved injurious to the trade of Ber-
1 CO/5-649, p. 147. CO/5-674, p. 311. A. P. C, vol. V, p. 113;
26 August 1767.
* C. 5. P., 1696-7, p. 243. CO/s-725, p. 165. B. T. /., vol. X, p. 352.
'CO/5-911, p. 209. CO/5-913, p. 503. CO/5-915, p. 148; 7 May 171S.
Acts and Resolves, vol. ii, p. 235, ch. v.
6i9] POLICY IN LEGISLATIVE REVIEW 201
muda,' and the Province of North Carolina which had no
good ports within its own bounds, complained of an act
of South Carolina which laid an impost upon its naval
stores, and of an effort by Virginia to prohibit the impor-
tation and sale of its tobacco.' It did in fact appear, as
West observed, that the colonies considered themselves
alien to each other and able to " act as independent King-
doms in point of trade." ^ Although deprecating the
evils which arose from this general freedom of taxation,
the home government realized its absolute necessity for
raising adequate provincial revenues, and sought, not to
prohibit the levying of duties upon inter-colonial trade,
but rather to prevent excesses and consequent reprisals
which would appreciably injure any one colony, the
colonies as a whole, or the trade and interest of Great
Britain.*
The crown interfered to prevent the taxation by Caro-
lina of goods transported across her frontier by Indian
traders from Virginia and again several years later to free
the Indian traders of South Carolina from burdensome
restrictions imposed by Georgia. The need for concerted
1 CC;/s-io59, Gg, 13. B. T. J., vol. xlvi, pt. ii, pp. 2, 149; 1739.
'AT. Car. Col. Records, vol. v, pp. 786-7; Cited by Dtckerson, p. 250.
CO/5-1366, p. 76. A. P. C, vol. Hi, p. 345; Disallowed, 25 November
1731.
' In spite of urgent need, Virginia was unable to lay duties upon ships
entering and leaving Chesapeake Bay for the erection and support of
a light house, because Maryland was exempt from such levies by a
provision of its charter. Attempts of Virginia to erect such a beacon
failed because of the opposition of Maryland in 1728 and 1759? but she
finally succeeded in 1772, when Governor Dunmore violated his in-
structions by assenting to an act for the purpose without a suspending
clause. B. T. /., vol. xxxvii, pp. 270, 281. A. P. C, vol. iv, p. 401.
CO/S-1333, p. 513- CO/S-1369, p. 309. CO/S-1334, Cc 40.
* CO/5-894, Oo, 5. Report of Jackson on a Masscdiusetts "tonnage
bill."
202 REVIEW OF COLONIAL LEGISLATION £620
action upon this subject was frankly admitted by the
Board of Trade in a letter to the governor of South Caro-
lina, endorsing his proposal for a conference among the
governors of the southern colonies. An intercolonial
agreement, they hoped, " might stop those mischiefs and
inconveniences which have followed from different Prov-
inces connected with the same Indians passing partial
acts, not only differing from, but frequently obstructing
and counteracting each other. [This] has been one . . .
source of that jealousy and discontent among the Indians,
which of late years has been attended with such terrible
consequences." ^ Nevertheless, a law of Virginia passed
for this very purpose ten years later, was regarded as an
act of usurpation and was disallowed, ostensibly because
it contained no suspending clause.^
^ Board to Gov. Boone, CO/5-404, p. 171 ; 3 June 1762.
* CO/5-1369, p. 235. CO/S-1334, Cc, p. 15; 14 June 1771.
CHAPTER VIII
The Results of Legislative Review
The English experiment of endowing over-sea domin-
ions with a power to make laws which should be as nearly
as possible conformable to those of the mother country,
committed the home government to a second venture, —
that of reviewing and checking the enactments of the
colonial legislatures. We have seen how the necessity
of such a supervision came gradually to be realized in
England ; and how, piece by piece, the administrative
machinery for its accomplishment was assembled. We
have seen that in the exercise of this power the govern-
ment aimed to further the economic interests of the
Empire as a whole, to enforce a rather close conformity
both to the spirit and the letter of English law, to pre-
serve the supremacy of the crown in the dominions, and
to protect the colonists from the consequences of their
own legislative indiscretions. These conclusions natur-
ally provoke inquiry as to how far the government suc-
ceeded in the accomplishment of its ends, as to the ap-
proximate causes of such success or failure, and further-
more, as to whether the system of review was in its
operation such a hardship upon the colonists as to con-
stitute a just grievance against the mother country.
In its review of legislation the government found much
with which to contend. The great distance of the colo-
nies from England, the slowness and uncertainty of com-
munication, the ignorance, indifference and procrastina-
621] 203
204 REVIEW OF COLONIAL LEGISLATION [622
tion of many local officials, all militated against success.
An obstacle even more formidable was the particularist
temper of the colonists, a people always jealous of pre-
cedent and ever suspicious of the slightest infringement
upon their alleged rights. Nevertheless, the government
by its control over the colonial legislatures did achieve
the main objects of its desire. In such policies as the
crown chose to maintain consistently and without com-
promise the colonies learned to acquiesce ; for against a
disallowance, followed by an instruction to the governor
forbidding his assent to any future act of like purpose,
the popular party, as a rule, could make little or no
headway.
In this manner the assemblies were restrained from
placing imposts upon goods of English manufacture,
from regulating the value of foreign coins, and from en-
couraging the establishment of manufactures which
would compete with those of Great Britain. For the
most part, they were prevented from enacting provisions
unduly favorable to the local inhabitants ; although ex-
emptions from dues upon shipping were sometimes in-
serted in necessary supply acts. In its efforts to restrict
the issue of paper currency the crown was less uniformly
successful. The government would fain have forbidden
its use altogether. But the dearth of any proper medium
of exchange in the colonies rendered some concession to
local sentiment unavoidable. Nor could bills once issued
be summarily recalled or declared void without injury
both to private holders and to trade. Until the last in-
tercolonial war the government succeeded fairly well in
limiting amounts outstanding, in obtaining adequate
provisions for refunding and in preventing the bills from
being made legal tender. The urgent necessity for ob-
taining supplies for the war, however, caused a relaxa-
623] ^^^ RESULTS OF LEGISLATIVE REVIEW 205
tion of instructions, and an increased volume of currency,
especially in New York, New Jersey and Pennsylvania.'
In the larger sense the government succeeded in keep-
ing the colonial laws in conformity with those of Eng-
land. Differences in minor technicalities were common,
and not all of them were excusable because of local con-
ditions or long-established usage. But by reason of
many annulments the colonists learned to respect the
personal rights and private property of individuals, and
to abide by the forms and larger precedents of English
law. When the Board of Trade began its work at the
close of the seventeenth century the acts of every colony
were ill-kept, loosely worded, and burdened by contra-
dictory amendments. The Puritan colonies in basing
their legislation upon the Mosaic code had enacted many
absurd prohibitions and excessive penalties. Left to
their own initiative, no doubt the colonists, with the
gradual development of a trained bench and bar, would
have remedied these defects. But the marked improve-
ment in the technic of law-making displayed during the
early part of the eighteenth century by all the colonies
whose acts were subject to review at home, was due
primarily to persistent tutelage from the Board of Trade
and the law officers. Their guidance constituted the
most potent factor in the gradual moulding of a colonial
jurisprudence similar in broad lines and essential features
to that of England.
In attempting to defend the prerogative from legisla-
tive encroachment the government was less successful.
The assemblies learned to acquiesce in the proper forms
of loyalty, to make no grants save to the king, and to
•Hardy to the Bd, CO/5-1067, D, 30; 2^ February 1756. A. P. C,
vol. iv, p. 346; 8 July 1757- A. P. C, vol. iv, pp. 362, 372; i April
1758. A. P. C, vol. iv, p. 341.
2o6 REVIEW OF COLONIAL LEGISLATION [624
forbear from interfering with the property of the crown.
But the popular support accorded the lower houses, to-
gether with their control over supplies, frequently enabled
them to override the king's governors in matters which
were properly within the latter's sole discretion or had
originally been placed there.
An effective review of legislation in England was often
hampered by irregularities upon the part of colonial leg-
islatures and officials. Failures of the governors to trans-
mit promptly acts and other official papers was a constant
source of inconvenience and annoyance. The Board com-
plained in 1754 that they had received no word from New
Hampshire for two and a half years; and in 1742 that
during almost a decade only six acts had been submitted
from New Jersey.* Despite the renewal of instructions
reminding the governors of their duty in this respect,
complaints regarding the ill effects of legislation fre-
quently reached the Board in advance of the acts to which
they had reference.'' In many cases delay in transmission
was caused by irregular and uncertain communication
between the colonies and the mother country. This was
especially true of the more isolated colonies like New
Hampshire and the Carolinas, although Governor Fau-
quier of Virginia excuses himself by the fact that " no
ships for London went out of these ports for a long
^ Board to Wentworth, CO/5-941, p. 354 ; 5 July, 1754. Board to
Morris, CO/5-997, p. 25 ; 3 August, 1742.
"Hillsborough to the Gov. of N. Y., Col. Docs., vol. viii, p. 82;
II July 1768. John Penn protested to Hillsborough that this fact did
not necessarily imply official neglect. For " merchantile people have
more frequent opportunities of w^riting to their correspondents, having
a wider knowledge of conveyances from other Provinces. Also they
transmit intelligence when it would be improper for Governors to
transmit accounts before they are fully ascertained."
625] ^^^ RESULTS OF LEGISLATIVE REVIEW 207
time." ' Far more often, however, tardy submission ap-
pears to have been caused by negHgence and procrasti-
nation upon the part of governors or the colonial secre-
taries. The latter who were usually ill paid and sometimes
incompetent, were apt to slight the transcribing of laws,
while the governors sometimes neglected the matter of
transmission entirely or left it to subordinate officials."
The charter of Pennsylvania allowed that colony five
years in which to submit laws to the Privy Council, and
there can be no doubt that she sometimes took advan-
tage of this unnecessarily long interval to prolong the
operation of acts which she well knew would be disal-
lowed. In 1718 and again in 1766 there was a delay of
over three years between the enactment of laws and their
consideration at the Board.'
The review of legislation was sometimes hampered
also by the inclusion of provisions upon unrelated sub-
jects within the same enactment. In the majority of
cases this also was due to ignorance or carelessness.
Maryland, for example, submitted an entire code under a
single enacting clause. In 1695 the committee com-
plained that diverse acts of Massachusetts were "joined
together under ye same title, whereby it has been neces-
sary for the repealing of such of them as have not been
thought fit to be confirmed to vacate such others as have
1 CO/1329, X, 65; 10 April 1759. Hillsborough urged the Governors
to avail themselves of any private ship and not to wait for packets.
N. Y. Col. Docs., vol. viii, p. 82.
* Board to Dudley, CO/S-911, p. 18; 29 April 1703. CO/S-913, p. 504.
CO/ 5-869, Y, 38. CO/5-942, p. 260; 10 July 1764. CO/6-907, p. 359.
CO/S-911, p. 422. N. Y. Col. Docs., vol. viii, p. 277. C, 5". P., 1677-80,
p. 388; Barbadoes. C. 5". P., 1699, P- 165; Antigua.
'Pa. Stats., vol. iv. p. 467; 21 April 1739. A. P. C, vol. ii, p. 614.
CO/s-1293, p. 160. Pa. Sts., vol. vi, p. 608; 9 June 1766. Root, Rela-
tions of Pa. with the Br. Govt., pp. 138, 141.
2o8 REVIEW OF COLONIAL LEGISLATION [626
been comprehended under such titles."' The Privy
Council forbade this practice by a standing instruction
to the governors. Yet apparently without ill design the
colonies passed many such inclusive laws as that of
Jamaica, "for better regulating slaves and rendering
free negroes and mulattoes more useful, and preventing
hawking and peddling, and enlarging the time for Com-
missioners collecting outstanding debts;" or that of
South Carolina " in addition to an act preventing the
spread of contagious distempers, and renewing an act for
establishing a market in Charleston."" When, in rare
instances, this expedient was used to circumvent the
Board of Trade, the objectionable provision was usually
inserted as a rider to a supply act. Thus, in 1760, the
Board complained that a Pennsylvania law issuing bills of
credit included a loan to Col. Hunter with which it had
not the least necessary relation.3
The enactment, and sometimes the re-enactment of
objectionable laws of brief duration was another source
of annoyance to the Board of Trade. This practice, if
unrestricted, would have enabled the colonists to defeat
the object of review altogether. Accordingly the gov-
ernors were instructed that all laws save those for a
temporary end should be indefinite and without limitation,
and that no law once enacted should be re-enacted except
upon very urgent occasions, and in no case more than
once without the king's express permission."* It was
^ CO/5-906, p. 205 ; August 1695.
^ A. P. C, vol. iii, p. 344. A. P. C, vol. iv, p. 141. Both were dis-
allowed upon other grounds.
' Pa. Stats., vol. v, p. 715. C. S. P., 1681-5, p. 316; Jamaica. B. T. J.,
vol. Ixix, p. 40 ; South Carolina.
*B. T. J., vol. X, p. 206. C. S. P., 1696-7, p. 589; 26 August 1697.
Board to Bellomont, A£ts and Resolves, vol. i, p. 308.
627] THE RESULTS OF LEGISLATIVE REVIEW 209
scarcely practical or feasible to make the prohibition of
temporary acts absolute. Yet the qualification left a
loophole for evasion, in that the governor must decide
what constituted a temporary end. The interpretation
both of the governors and the Board of Trade was liberal,
for many temporary laws were enacted in all the colonies
and the great majority met with no objection upon that
account. Approximately four per cent, of the laws of
Pennsylvania, eight per cent, of New York acts and sev-
enteen per cent, of those enacted by Massachusetts ex-
pired within two years, and a large part of these had
already ceased to have eflFect when examined by the
Board of Trade. They included revenue acts, laws pro-
viding for defence, regulating the militia, maintaining
highways, establishing fees and bounties, and governing
various matters of domestic concern.
Temporary acts which incurred the particular displeas-
ure of the Board were for the most part revenue measures
upon which the assembly had grafted some obnoxious
provision. A Pennsylvania law of 1710 laid a duty of
nine pence per ton upon all ships except those owned by
inhabitants of the province.' A Massachusetts act of
1718 contained a double impost upon goods imported
from Great Britain, together with an exemption in favor
of local vessels. This was an annual law, and the Board,
presuming its re-enactment, went so far as to recommend
that the governor be ordered to declare his majesty's
disapprobation of the new act, and to prevent its being
put into execution.' A Jamaica law which levied an
^ Pa. Stats., vol. i, p. 555; 15 January 1714. This law was of three
years duration; but because of delay in submission it had only two
months to run when considered at the Board. It was re-enacted with
the exception of the tonnage duty and again disallowed, but only after
it had expired. Root. Relations of Pa. with the Br. Govt., p. 148.
' Acts and Resolves, vol. ii, p. 127. A. P. C, vol. ii, p. 760.
2IO REVIEW OF COLONIAL LEGISLATION [628
annual tax was disallowed because in attempting to
regulate the number of white men upon estates, it dis-
criminated against absentee owners.' The clergy of Vir-
ginia asserted that some of the laws regulating the pay-
ment of their salaries were made temporary to prevent
royal consideration. Yet in view of the unsettled price
of tobacco it is difficult to see how they could have been
of long duration.^ In some comparatively unimportant
instances temporary laws other than supply acts were
doubtless used to secure objectionable legislation. But
their enactment, except possibly in Pennsylvania, was
not an effective means of thwarting the home govern-
ment. If the attempted evasion were incorporated in a
revenue act, properly of limited duration, there was small
chance of its escaping observation and achieving re-en-
actment. Moreover, the governors feared to commit
such an obvious breach of instructions as the passing of
temporary acts for the accomplishment of permanent
ends, such as the disposal of private property, the regula-
tion of assemblies or the erection of courts.
A more common and, upon the whole, a more effectual
mode of evasion was the re-enactment of laws disallowed.
This practice also was forbidden by instructions. But
there was scarcely a colony which did not offend at one
time or another. A Pennsylvania act of 1700 granting
a jury to freemen in all cases whatsoever was disallowed
because it interfered with the jurisdiction of the admiralty
courts, where juries were not permitted. It was re-
enacted with a clause saving the admiralty jurisdiction.
Because the crown still feared that the law would be
^A. P. C, vol. iv, p. 39; 30 June 1748. Another Jamaica revenue
law, which the Board found to have expired, laid an additional duty of
40 shillings upon slaves. A. P. C, vol. v, p. 407; 27 February 1775.
*C0/S-I329, vol. X, p. 57; 23 May 1759.
629] ^^^ RESULTS OF LEGISLATIVE REVIEW 211
used to hinder the enforcement of the acts of trade, it
was disallowed, only to be again re-enacted and again
disallowed.' A Pennsylvania law of 1700 which gave a
preference to colonial debtors was re-enacted after dis-
allowance, and acts for establishing courts were several
times repeated with modifications.' Aroused by the fact
that acts, tardily submitted in 171 8, contained several re-
enactments of laws previously vetoed, the Board sent the
Pennsylvania charter to West, and inquired whether it
did not prohibit the practice. He replied that it con-
tained nothing to forbid the re-enactment in substance
of laws disallowed.3 Inasmuch as the governors of
Pennsylvania, unlike those of other colonies submitting
their laws to the Privy Council, were subject only to the
general instructions regarding the enforcement of the
acts of trade, the assembly of Pennsylvania by repeated
re-enactments could have nullified the effect of the royal
veto. The fact that they did not pursue such a course
was due largely, no doubt, to the realization that it
would have provoked an annulment of the charter.
Bermuda offended the Board by enacting a four per
cent impost on goods after the Crown had disallowed a
similar law levying five per cent.* New Jersey twice re-
enacted under different titles laws reducing the fees of
the secretary's office, and North Carolina repeated an ill-
advised attempt to facilitate the proving of wills.' By re-
1 Pa. Stats., vol. ii, pp. 18, 359, 451, 467, 543, 550. Pa. Stats., vol. iii,
PP- 31, 439, 463- Root, op. cit., p. 147.
^ Stats., vol. ii, pp. 63, 364, 494, 550. Root, op. cit., pp. 147, 159-174,
* B. T. /., vol. xxviii, p. 167. Chalmers, Opinions, p. 336 ; 24 March
1719. CO/5-1265, O, 171.
* A. P. C, vol. iii, p. 70; 4 July 1724. The second act was the more
oflFensive in that it reduced the amount to 2% for inhabitants of
Bermuda.
' CO/5-972, E, 56. A. P. C, vol. iii, p. 343; New Jersey, 25 November
212 REVIEW OF COLONIAL LEGISLATION [630
enactment the colonists could secure the operation of a
law between the time of its passage and the arrival of
an order of disallowance in the colony. But there was
little chance of eluding the vigilance of the law officers
and the Board of Trade, even though the objectionable
provisions were disguised in form and title. Usually the
assemblies made concessions, sometimes insufficient, it is
true, towards eliminating objections made to the former
act, and in many cases these were so effectually remedied
that the second law passed the Board without objection.^
In some instances a disallowance was rendered of no
effect by the failure of an order in council to reach the
province, or by the neglect of colonial officials to enter
it upon the law books. In this manner a provision in a
Virginia revenue law, disallowed in 1680, continued in
force until the fact was brought to the attention of the
Board in 1707.^ The repeal of a Massachusetts act
** Establishing the Township of Danvers " was never
observed in the colony, and a law of New Hampshire
regarding the care of idiots, which was disallowed in
1718, remained in force until it was re-enacted and again
annulled fifty years later.^ In 1761 Lieutenant Governor
Golden wrote to the Board — " I zm told that several acts
in Basket's edition of the acts of New York in 1718 are
1731. CO/s-973, F, 3. A. P. C, vol. iii, p. 454; 9 January 1735.
CO/5-325, C, 189. A. P. C, vol. iv, pp. 502, 503; 14 December 1761.
^ For example, an act of New Hampshire "Restraining Excessive
Usury," CO/5-943, p. 16; 20 July 1770. Such lav^rs were supposed to
contain a suspending clause, but this requirement was not always
complied with.
* B. T. J., vol. xix, p. 399. In like manner the Board sent a second
order in council repealing a Virginia law " Granting, Seating and
Planting Lands " in 1710. CO/5-1263, p. 219.
' ^0/5-915, pp. 163, 172; 27 August 1718. A. P. C, vol. V, p. 189;
26 May 1769.
631] THE RESULTS OF LEGISLATIVE REVIEW 213
noted to be repealed, of which not the least evidence
appears anywhere in the Province. ... I make no doubt
the judges continue to proceed upon them as of force.'
Experience in reviewing colonial legislation convinced
the English officials at an early date that some check
upon the assemblies' power of initiative was an absolute
necessity. Without it the colonists could enact what
manner of laws they pleased, and after disallowance they
could defy the royal authority by re-enacting them again.
Following an ill-considered and unsuccessful attempt to
compel the submission of proposed legislation to the
Privy Council prior to its enactment, the government
placed an increasing reliance upon instructions which
limited the governors' discretion in giving assent to acts
of the assemblies. The strictness with which they were
observed varies somewhat in different colonies, and from
time to time in the same colony, according to the tem-
per of the assembly, or the popularity and political
sagacity of the governor. But upon the whole they
imparted a necessary continuity to the enforcement of
the government's policies, and constituted a fairly effec-
tive means of controlling legislation. The prohibitions
most emphasized, — those regulating matters of trade,
shipping and finance, — were well obeyed, with the ex-
ception of restraints upon the issue of paper currency.
Mandatory instructions that governors should use their
utmost endeavor in securing the amendment or the enact-
ment of legislation were binding upon the governors,
but not upon the assemblies ; and the latter frequently
neglected or refused to comply with the government's
requests.'
* A^. Y. Col. Docs., vol. vii, pp. 454-455. Dickerson, op. cit., p. 272.
'CO/5-362, D, i8; 1731. B. T. I., vol. Ixx, p. 360; 1763. And many
others.
214 REVIEW OF COLONIAL LEGISLATION [632
Least effectual were the several instructions which
forbade governors to pass laws without the insertion of
a suspending clause. Massachusetts and Pennsylvania
consistently refused to make use of this expedient inas-
much as their charters provided that laws should operate
from the time of their enactment/ Because of the ex-
pense and long delay involved in securing a decision
from the crown the assemblies consented to suspending
clauses only with the greatest reluctance. By repeated
disallowances the government schooled most of the royal
colonies to their insertion in private laws. But in spite
of repeated complaints from the Board of Trade the in-
struction which required the suspension of acts repealing
former acts, whether the law repealed had received royal
confirmation or not, was violated repeatedly.^
Another instruction which received at best a perfunc-
tory compliance was that requiring the insertion of a
suspending clause in laws " of an unusual or extraordi-
^ Upon several laws, however, the governor of Massachusetts secured
a previous permission to give consent and another he so worded that
it would have no effect until His Majesty's pleasure could be known, —
an expedient which was practically equivalent to the insertion of a
suspending clause. Hutchinson to the Board, CO/5-894, p. 365; 8 May
1772, "Incorporating the Overseers of the Poor of Boston." Permission
was obtained for a bankruptcy act, CO/5-919, p. 61 ; 12 March 1760, a
lottery for Harvard College, CO/5-891, p. 535; 15 July 1765, and for
the repeal of a bounty for killing crows. In the latter case the Board
stated that it would have been better pleased had the assembly passed
the bill with a suspending clause. CO/5-918, p. 129 ; 9 August 1744.
^ A. P. C, vol. iv, pp. 131-141, a report upon sixty-seven Virginia
laws. The Assemblies of Massachusetts and Virginia complained of
the injustice of this prohibition, and asked that it be modified. Parlia-
ment, they pointed out, was free to repeal laws of its own making
whenever they proved inexpedient. The Board replied that the in-
struction was " founded on such good and solid reason " that they could
not advise any alteration therein. CO/5-875, p. 306; 12 January 1733.
A. P. C, vol. iv, p. 174; 20 December 1752.
633] THE RESULTS OF LEGISLATIVE REVIEW 215
nary nature, wherein His Majesty's prerogative or the
property of his subjects might be prejudiced." This
vague phraseology enabled governors when pressed by
the assemblies to give questionable legislation the ben-
efit of a supposedly honest doubt. The Board, upon the
other hand, found no difficulty in applying it to almost
any legislative indiscretion which failed to fall under
some other head.
In a few instances the colonists ventured to put laws
into immediate operation, notwithstanding the fact that
they contained a suspending clause. In this manner the
assembly of New Jersey disregarded the protests of the
governor, and ordered an act for regulating fees printed
**as a rule for the government of the people." Georgia
also inserted a suspending clause and then issued bills of
credit without waiting to learn the royal pleasure.'
In many cases the governor's failure to obey instruc-
tions was due to a necessity of obtaining supplies from a
recalcitrant assembly. This was particularly true of acts
authorizing bills of credit, although the assemblies used
their control of appropriations to good effect in securing
laws for other purposes as well. The assembly of Ja-
maica, for example, forced the governor to pass a law
limiting the duration of future assemblies, by holding
back an annual supply bill.' Again, the governors failed
because of carelessness, or because of inability to grasp
the imperial idea and the necessary implications thereof,
or because they feared to incur unpopularity by resisting
public sentiment.
* Morris to the Board, CO/5-974t F, 57; 3 March 1744. A. P. C,
vol. iv, p. 9; 28 June 1749. Ellis to the Board, CO/5-673, p. 264:
21 April 1758. A similar complaint was made against a Virginia act
regarding the export of hides. CO/s-i33r, Z, 88; 29 October 1766.
' A. P. C, vol. iv, p. 91 ; 30 June 175a.
2i6 REVIEW OP COLONIAL LEGISLATION [634
In addition to the neglect and evasion of colonial offi-
cials, the government's review of legislation suffered in
effectiveness both from the nature of the machinery
evolved for the task in England and from the laxity
which frequently pervaded the colonial administration
there. The work could have been accomplished in a
comparatively simple and expeditious fashion had the
Privy Council delegated its discretion in regard to legis-
lation to a small body of colonial experts, at least one of
whom was competent to decide questions of law. In-
stead there was built up, precedent upon precedent, a
system under which the Council followed the recom-
mendations of a committee of its own members, who in
turn relied upon reports from a board acting largely
upon the advice of other officials. This procedure, in-
volving as it did a series of references from board to
board, was at best cumbersome and dilatory. Moreover,
there was no particular person charged with the over-
sight of laws during their entire course from one office
to another. Consequently, unless the colonial agents or
the merchants, or other parties having interest, visited
the various officials and speeded their progress, acts were
liable to be delayed for years. In July, 1697, the secre-
tary of the Board informed that body that in getting
ready acts to be sent to the attorney and solicitor, he
found it necessary to look many years backwards for
those that had lain in the plantation office without any
report upon them.^ Several Massachusetts laws sent to
the attorney and solicitor in September, 1696, became
misplaced and were not found until May, 1698.^ Indeed,
the failure of the attorney and solicitor to render desired
' B. T. J., vol. X, p. 156.
^ Acts and Resolves, vol. i, p. 231.
635] 'TH^ RESULTS OF LEGISLATIVE REVIEW 217
reports was a subject of repeated remonstrance at the
Board of Trade. The king's counsel, as a rule, was rea-
sonably prompt. But in numerous instances laws re-
turned with his report either were entirely neglected at
the Board or remained long without consideration.
Eighteen acts of Massachusetts, passed in 171 5-16, were
referred to the counsel in 1724. He reported in 1725,
but the greater part of these laws were not considered
at the Board until November, 1735, long after they had
been confirmed by lapse of time. In 1739 twenty- six
acts of Pennsylvania, passed prior to 1734, were found
by the agent " after tedious researches, . . . laid up in a
by-corner by the Board of Trade and covered very thick
with dust.'" A Virginia bill for "Settling the Titles
and Bounds of Lands " remained in the ofBce of the
auditor-general for seven years before the agent secured
its return to the Board.' Such cases, although numer-
ous, constitute the exception and not the rule.' They
merely serve to demonstrate that a cumbersome pro-
cedure, together with a lax and easy-going administra-
tion, permitted much needless uncertainty and delay in
the consideration of legislation.
' Pa. Stats., vol. iii, p. 493. Cited from the Peiin Papers in the col-
lection of the Hist. Soc. of Pa.
' CO/s-^2^7, P- 321 ; 2 December 1757. CO/5-1329, X, 28.
"Laws which the Board of Trade recommended for disallowance
sometimes remained unrepealed because the committee of the Council
neglected to take action upon them. But almost invariably the com-
mittee either found reason for allowing the law to remain in force, or
for re-referring the matter to the Board, which failed to render a
second report. An act of New Jersey, passed in 1747 for settling its
New York boundary, was re- referred by the committee and recon-
sidered without definite action in February, 1758. A quit rent law of
South Carolina was recommended for disallowance in November 1732,
and although the committee set a time for a hearing, it took no further
action in the matter. The act, or a substitute, however, was con-
2i8 REVIEW OF COLONIAL LEGISLATION [636
The process of review, complex and dilatory as it was,
certainly afforded the colonists ample opportunity for
presenting their case. Both the Board of Trade and the
committee of the Council were essentially fair in their
attitude toward colonial affairs, willing to take advice
and anxious to gather all available information before
pronouncing judgment. The Board was, and repeatedly
acknowledged itself to be, hampered by ignorance of the
real motives behind the enactment of laws. Indeed, it
frequently confessed inability to decide matters at issue
with the knowledge of colonial conditions at its disposal
and postponed action until the governor could be heard
from, or until merchants, former colonial officials or the
agents of neighboring colonies could be consulted. It
repeatedly urged the governors to give full and explicit
reasons for the enactment of legislation. Upon laws in-
volving a disposal of private property it postponed de-
cision for months, — and in some cases for years, in order
that any person aggrieved might seek redress. More-
over, those failing to secure a hearing at the Board or
dissatisfied with its report, could obtain a judicial review
of its findings from the committee of the Council.
Without doubt, however, the negotiations and hear-
ings requisite for securing the repeal or confirmation of
legislation involved considerable expense to the colonists.
sidered at the Board in 1739. Three laws of New Hampshire, for es-
tablishing parishes and townships were condemned by the Board in
1752, but nothing came of it because the governor wrote that the as-
sembly had yielded the principal points in dispute. CO/s-941, p. 364;
6 August 1755. The committee may have failed to take any notice of
a Massachusetts law passed in 1735 for preventing the circulation of
paper money issued by private parties in New Hampshire. Acts and
Resolves, vol. i, p. 147, ch. xxi. Dickerson, op. cit., pp. 270-271. In
1709 the Board warned the Privy Council that it must shortly declare
the royal pleasure upon the Pennsylvania laws passed in 1705, or they
would be confirmed by lapse of time. B. T. /., vol. xxi, p. 232.
637] ^^^ RESULTS OF LEGISLATIVE REVIEW 219
Fees must be paid to secretaries and under ofiicials, and
in case of formal hearings, counsels and solicitors must
be retained. The distribution of fees was especially-
necessary for securing the progress of laws containing a
suspending clause, — a fact which goes far to explain the
continued reluctance displayed by the assemblies in con-
senting to their use. Moreover the expense of private
acts, in which the insertion of a suspending clause was
obligatory, fell not upon the colonies, but upon individ-
uals interested in securing their confirmation. Conse-
quently such acts sometimes lay by for years, or failed in
their object altogether because no person appeared to
secure their reference to the law office or consideration
at the Board.
In numerous instances the Board, in urging upon the
colonies the necessity of maintaining accredited agents
in England, frankly stated that fees must be paid to
secure the confirmation of private acts.' Other sources
show that a judicious use of money frequently hastened
favorable action upon public laws as well. In 1732
the agent of Rhode Island warned his constituents
that the passage by Parliament of a pending bill
obliging the colony to submit its laws to the Privy
Council would entail a great expenditure of money
yearly " at the Council Office, and the Board of Trade
to get the acts through here, in fees for Petitions,
Reports, References and Royal Orders, besides the tedi-
1 Board to Hunter, CO/5-1123, p. 441; 16 April 1716: "Several New
Jersey acts, particularly private ones, * require to be sent to the
Attorney and Solicitor General for opinion before the Board can present
them to His Majesty. But as there is no Agent here * enabled to dis-
burse what may be necessary from time to time, those acts will lye by
forever in their hands." Also CO/s-915, p. 20. Board to Blakiston,
CO/S-726, p. 99.
220 REVIEW OF COLONIAL LEGISLATION [638
ous delays that may happen." ' Penn asked the govern-
ment of Pennsylvania for " fifty guineas, if not one hun-
dred, to get a favorable report" upon a large collection
of laws, and later he wrote that the report of the At-
torney-General was held up for want of a large fee to
him."" Bellomont wrote the Board in 1698 that twenty-
eight merchants of New York had contributed one hun-
dred pounds for use in obtaining the royal approval of
an indemnity bill. Later he reported that on the third
reading of a bill at the council a member declared there
would be forty thousand pounds available " to stop the
King's approbation in England." This Bellomont con-
sidered " so abominable a reflection on the Government
of England, but so common a one here," that he ven-
tured to suggest that their lordships should " put all
imaginable discountenance upon it." 3 The ministry
and vestry of St. Paul's, Philadelphia, represented to the
Board that an assembly of Quakers there had made a
law, and raised money " on us as well as themselves,^
part [of which] goes towards interest to get ye said Law
approved."* In 1723 Governor Nicholson of South
Carolina wrote the Board that by common report there,
those dissatisfied with his majesty's government had
raised twenty-five hundred pounds current money to
secure the confirmation of a paper money act.^ The fee
system pervaded all branches of English administration
^ Kimball, Correspondence of the Govs, of R. I., vol. i, pp. 55-6,
Cited by Root, p. 133.
* Penn-Logan, Corresp., vol. i, pp. 297, 342. Pa. Col. Recs., vol. ii^
p. 193, Cited by Root, p. 133.
'CrO/5-1041, p. 260; 27 October 1698. CO/5-1042, p. 207; 15 May
1699.
* CO/5-1263, O, 77; 25 March 1706.
'CO/5-3S9, B, 30; 12 November 1723.
639] ^^^ RESULTS OF LEGISLATIVE REVIEW 22 1
and it could hardly be expected that colonial affairs
would be favored by special exemption. But it is safe to
say that the expense involved irritated the colonists and
contributed materially to their dislike for the English
control over legislation.'
Of 8,563 acts submitted by the continental colonies,
469 or 5.5 per cent, were disallowed by orders in coun-
cil. By colonies the percentages of laws disallowed are :
New Hampshire, 7.2 per cent.; Massachusetts, 2.8 per
cent.; New York, 3.4 per cent.; New Jersey, 4.5 per
cent.; Pennsylvania, 15.5 per cent.; Virginia, 4.3 per
cent.; North Carolina, 8.8 per cent.; South Carolina, 4.9
per cent., and Georgia, 9.4 per cent.' Letters from the
governors and occasional protests from the assemblies
reveal the existence of restiveness and resentment result-
ing from the loss of popular acts. Governor Dudley
speaks of a " riot of about twenty young persons in
Hampton," New Hampshire, which was occasioned by
the disallowance of two laws regarding land grants. ^ St.
' Chalmers, Opinions, states, on p. 8, that " the Law Officers were
each allowed a standing fee of 100 g^uineas, with 10 guineas to each
of the Clerks." This statement, of course, applied to the attorney and
solicitor, not to the king's counsel. Even by the former such fees
could hardly have been obtained except upon large collections of laws.
* This count begfins with the New Hampshire laws enacted in 1699,
with those passed by Massachusetts in 1692, under the new charter,
those of New York enacted in 1691, of New Jersey in 1703, of Virginia
in 1676, of North Carolina in 1734, of South Carolina in 1721, and of
Georgia in 1755. Because of confusion and frequent re-enactments it
does not include laws passed in Pennsylvania prior to 1700. Neither
does it include the laws submitted by Maryland between 1691 and 1715,
while it was a royal province. The result was obtained by checking
laws enacted and noted as repealed in various editions of colonial laws,
against those mentioned in the Board of Trade papers as submitted
and annulled in England. Numerous discrepancies preclude perfect
exactitude, and the figures are only approximately correct.
'CO/s-911, p. 434; 10 October 1704.
222 REVIEW OF COLONIAL LEGISLATION [640
John, a surveyor, was imprisoned by the assembly of
South Carolina, the Board found reason to believe, solely
because of the part he had taken in securing the repeal
of a quit rent bill.' In Pennsylvania much confusion re-
sulted from the repeated annulment, for reasons which
seem scarcely adequate, of laws establishing courts. The
disallowance of a Massachusetts bankruptcy law which
left numerous insolvents without relief for some years,
and the repeal of a scheme for establishing a land bank
in the same colony, appear to have caused considerable
inconvenience and suffering. Because of the Board's for-
bearance there were, however, very few cases in which
disallowance brought loss of property to individuals.
Rather than inflict undeserved hardship upon taxpayers,
subscribers to lotteries, or holders of paper currency,
the Board left many objectionable acts in force and
contented itself by instructing the governors to procure
their amendment or repeal from the assembly.
In addition to injury entailed by actual disallowance,
the colonists suffered from the uncertainty and delay in-
volved in the submission of legislation to the Privy
Council. The average time between the enactment of
four hundred and thirty-seven laws and their repeal in
England was approximately three years and five months.
Of these, ten per cent, were disallowed during the first
year after their enactment, thirty-one per cent, during
the second year, twelve per cent, during the third year,
and twelve per cent, during the fourth year, while thirty-
five per cent, had been in force more than four years.*
» CO/5-401, p. 63 ; 7 June 1733.
* From one to three additional months were required for the orders
in council to reach the colony. These laws include nearly all of those
repealed from N. H., Mass., N. Y., N. J., Pa., Va., N. Car., S. Car., and
Ga. The fact that a few were disallowed many years after enactment
641] THE RESULTS OF LEGISLATIVE REVIEW 223
An act of Virginia, which forbade the importation of
tobacco from North Carolina was suddenly disallowed in
1 73 1, twenty-six years after its enactment; while a South
Carolina law for "Easing Port Charges" was repealed
in 1755 after having been in force seventeen years.'
Governors sometimes, though rarely, complained that
they had not been informed of the reasons for disallow-
ance and were consequently at a loss how to proceed
when the law was re-enacted by the assembly.'
A more common cause of vexatious uncertainty lay in
the government's failure to act upon laws containing a
suspending clause. New Hampshire submitted a trien-
nial law in 1724, the enforcement of which was suspended
until 1731. Failing to obtain either its rejection or con-
firmation, a second law was passed in 1728, which
escaped notice and remained in force until 1752.3 The
assembly of Georgia sought to justify an issue of paper
currency under an act containing a suspending clause
because of urgent necessity, and the fact that the colony
had been in doubt of the law's fate for nearly three years/
In 1764 the Virginia assembly refused to pass a sus-
pended law to "Preserve the Breed of Cattle" from a
prevailing distemper, upon the ground that the damage
would be done before his majesty's pleasure could be
known. Fourteen months later the Board gave the gov-
and that others, especially those of Pennsylvania, were sometimes de-
layed in transmission, renders such an average unsatisfactory as a basis
for criticism of the government.
' A. P. C, vol. iii, p. 345.
'Montgomerie to the Board, CO/5-1054, Dd, 83; 30 November 1728.
Johnson to Board, B. T. J., vol. xlvii, p. i, pt. ii. B. T. /., vol. xlix,
p. 92; 12 August 1741.
•CO/5-870, Z, 42, Z, 59. CO/5-941, p. 279; 9 July 1752. CO/5-926,
B, 37.
♦ Ellis to the Board, CO/S-676, C, 63 ; 24 April 1759.
224 REVIEW OF COLONIAL LEGISLATION [642
ernor permission to assent, if the necessity for it still
existed, complimenting him at the same time upon his
firm and proper regard for his majesty's instructions/
The fact that the colonists could have obtained reason-
ably prompt action upon suspended laws, had they
always maintained capable agents in England and kept
them well supplied with money, did not lessen a sense of
irritation and unjust restraint. Perhaps no grievance
stated in the Declaration of Independence had greater
basis of fact than the assertion that the king had ** for-
bidden his governors to pass Laws of immediate and
pressing importance, unless suspended in their operation
till his assent should be obtained ; and when so suspended
he has utterly neglected to attend to them."
The colonists sought half-consciously to possess afield of
legislation removed from imperial concerns, within which
they might pass laws with a minimum of interference
from the British government. The Board of Trade ap-
pears to have recognized both the existence and the jus-
tice of this desire, and to have been somewhat more
lenient towards laws purely of domestic import. Despite
defective wording or doubtful expediency many acts were
left in force because they related " only to the private
economy of the Province " or were " merely of local
operation," having reference "to points of internal police
and economy."'' In refusing a request from several
Massachusetts towns for the disallowance of an unpopular
excise law, the Board stated that " upon the whole the
mode of Levying Taxes is a matter of Provincial Oecon-
omy, of which the Representatives of the People are the
1 CO/5-1330, p. 31. CO/S-1369, p. 255; IS February 1765.
2 A. P. C, vol. iv, p. 104. A. P. C, vol. iv, p. 97. Pa. Stats., vol vii,
p. 769.
643] T^^^ RESULTS OF LEGISLATIVE REVIEW 225
Competent Judges."' But the forbearance of the gov-
ernment in this respect amounted in truth to httle. As
a principle of exemption it was never formulated in gen-
eral terms. The requirements that laws be conformable
to those of England, and not injurious to the prerogative
of the crown, caused the repeal of acts upon all subjects ;
while the mere fact that they promised to result in injury
to the colonists themselves proved fatal to many laws
which were purely local in scope. It was, for example,
scarcely a matter of imperial concern that the assembly of
Pennsylvania chose to prohibit "stage plays,"' that the
lawmakers of West Florida made too generous a provi-
sion for their own salaries,^ or that Virginia should re-
peal without a suspending clause an act which impow-
ered the justices of Norfolk County to establish certain
ferries.* It was doubtless for the best interests of Bruton
Parish in Virginia that the vestry should be restrained
from lending the proceeds of glebe lands upon personal
security.* But, upon the whole, the colonists would
certainly have preferred a greater freedom to suffer the
results of their own mistakes without interference from
the English government.
More important than annoying delays and needless
interference in domestic affairs was a realm of conflicting
interests wherein the natural efforts of the colonies
toward economic and political self-development were
sacrificed to the dictates of imperial policy. The charge
of the Declaration that the king had '* refused his .Assent
to Laws, the most wholesome and necessary for the pub-
* A. P. C, vol. iv, p. 295; 12 August 1755. CO/s-918, p. 312.
2 Stats., vol. V, p. 721 ; 24 July, 1760.
* A. P. C, vol. V, p. 158; 12 August 1758.
*A. P. C, vol. V, p. 164; 12 August 1768.
" A. P. C, vol. iv, p. 684; 20 July 1764.
226 REVIEW OF COLOA'IAL LEGISLATION [644
lie good," might well refer to the repeated disallowance
of acts laying prohibitory duties upon the importation of
slaves or the transportation of convicted felons. The
government did in fact " obstruct laws for the naturali-
zation of foreigners," and with less truth " refuse to pass
others to encourage their migration thither." ' It re-
strained the colonies, not altogether unwisely, it is true,
in their efforts to provide a necessary medium of com-
mercial exchange and to lighten the burdens of debtors.
Its control over legislation acted as a strong, if not an
entirely efifective, curb upon the growing power and
influence of the popular branch of the colonial legisla-
tures. By means of it the government, in defence of the
prerogative, interfered to prevent further increase in the
membership of the assemblies, and to curtail their power
to repeal or amend laws of their own making. It pre-
vented the assemblies from exercising what they assumed
to be their rightful privilege — a control over appropria-
tions equal to that enjoyed by the Commons in England.
And it defeated a popular desire for local courts of
record whose judges should hold ofBce, as in England,
for good behavior rather than at the pleasure of the
crown. If we grant the government's premise that the
economic development of the colonies was necessarily
subordinate to the maintenance of a balance of trade in
favor of England, and to the advancement of the com-
mercial interests of a self-sustaining empire; and that
political innovations must in no way impair the power
or prestige of the crown, there is little of which to com-
plain in the policy pursued by the government toward
colonial legislation. But the colonists, although they
'Georgia law for "Encouraging Settlers," A. P. C, vol. v, p. 112;
26 August 1767.
645] THE RESULTS OF LEGISLATIVE REVIEW 227
long acquiesced in a rather liberal application of these
precepts, never consciously subscribed to them ; and ill-
considered attempts to secure their enforcement con-
tributed largely to the final breach between the colonies
and the mother country.
Strictly speaking, the disallowance of colonial legisla-
tion by the Privy Council was not a repeal, because the
assemblies took no part in the process of declaring laws
invalid. Nor was it a veto, because legislation became
effective from the time of its enactment, and acts per-
formed in accordance with its provisions prior to annul-
ment by order in council remained valid. The power of
review exercised by the Privy Council was analogous
rather to that assumed by the Supreme Court of the
United States after the formation of the new govern-
ment. The Privy Council, it is true, declared acts void
upon grounds other than the contravention of a funda-
mental law; but it frequently did disallow laws because
they conflicted with the colonial charters, or with acts of
the British Parliament or the common law of England.'
Under its tutelage the colonists became accustomed to
a limitation upon the power of their legislatures. In
this sense the work of the Privy Council constituted at
once a precedent and a preparation for the power of
judicial annulment upon constitutional grounds now ex-
ercised by the state and federal courts in the United
States.
' The act of Parliament passed in 1696 for " preventing frauds, and
regulating abuses in the plantation trade," asserted the nullity of any
colonial law or usage which sholild be repugnant to acts of Parliament
referring to the colonies. Statutes at Large, 7 and 8 William III,
ch. xxii.
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