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ASSEMBLY PROCEDURE

429 body. It was due also in further part to the realisation by the Assemblies themselves of the fact that they were not municipal or provincial councils but were becoming in reality "his Majesty's Commons" in America, analogous to and co-equal with the House of Commons in England. The likeness appeared not only in the powers which the Assemblies exercised and the privileges which they enjoyed but also in the procedure they followed. In Virginia, this similarity of procedure was almost complete, even to the appearance of the Assembly chamber and the manner of the sitting of the members, which paralleled very closely the arrangements in St Stephen's Chapel, Westminster. Only in Connecticut and Rhode Island was the simpler system of a moderator's meeting employed, for in those colonies there were no standing committees, no readings of bills, and no dissolution, the Assemblies being adjourned, never dissolved. Yet even in these Assemblies there was a Speaker and their practice inevitably included certain parliamentary forms. The House of Representatives in Massachusetts, though similar in origin to the Assemblies of Connecticut and Rhode Island, adopted, under its royal governor, a number of parliamentary precedents, though less conspicuously than did either Virginia, Pennsylvania, or New York. Only occasionally did it make use of the standing committee, and only on rare occasions did it resolve itself into a committee of the whole House, a device which it used rather as a measure of secrecy against the governor than as a step in the process of passing a bill. A similar situation prevailed in Georgia, where, on going into committee, the members ordered the door to be locked and the key laid upon the table before the chairman and declared that no one could leave without incurring the censure of the House. Even in Virginia the committee of the whole House was frequently employed as a weapon in the Assembly's struggle with the Crown. The committee of the whole House was known in Jamaica,2 but was rarely used in Pennsylvania; and in North Carolina, while it acted sometimes in the usual manner, it took cognisance also of much business that in other colonies was dealt with by standing committees. The Barbados Assembly employed few standing committees and (as far as can be discovered) no committee of the whole House; but it made frequent use of joint committees, two of which, those on accounts and on instructions to the agent, were standing committees. There were also conferences or "grand committees" of the two Houses.

In nearly all the royal colonies the procedure employed followed a more or less uniform course, with many variations in detail. It is probable that most, if not all, of the Assemblies adopted standing orders or rules of procedure, though in a few cases only have they

1 Hening, Statutes at Large, III, 213, 419; J.H.B. Virginia, 1703, pp. 30, 55, 61; Pargellis, S. M., "Procedure in the Virginia House of Burgesses", William and Mary Quarterly, 1927. 2 Cal St. Pap. Col. 1702–3, p. 694.

been preserved.1 Such rules concerned the conduct of members, attendance and absence, manner of debate, order of business, matters of privilege, and the care of the records. Generally speaking, there appears to have been no attempt made in the Assemblies to restrict discussion or to deal with filibustering and obstruction. Only in Pennsylvania was the Speaker allowed to stop unnecessary, tedious, and superfluous debate and to demand silence when needful. The Assemblies were never in a hurry, and there is little to show that the freedom of speech was abused. The obligation to turn out laws was never pressing, and the total number passed is, relatively speaking, small. In the modern sense of the term there were no parties and no whips, though in the case of a vote the messenger might be sent to summon those who were absent; nor were agreements arranged beforehand. There was no calendar or order of the day, though probably the Speaker was accustomed to control the sequence of business. "The members", says Josiah Quincy, speaking of the South Carolina Commons House of Assembly, where the deputies represented the planting interests as did the deputies in the West Indies, "all sit with their hats on and uncover when they rise to speak. They are not confined (at least they do not confine themselves) to any one place to speak in. The members conversed, lolled, and chatted much like a friendly jovial society, when nothing of importance was before the House. Nay, once or twice, while the Speaker or clerk were busy in writing, the members spoke quite loud across the room to one another. A very unparliamentary appearance. The Speaker put the question sitting; the members gave their votes by rising from their seats, the dissentients did not rise." When either Speaker or clerk referred to a member he did so by gesture or title and not by name. Though many members were careful of their dress and appearance, there is reason to believe that those from the more remote sections paid little attention to clothes or manners, and the fact that drunkenness, smoking, and unseemly conduct were given prominent place in the standing rules of the House shows that such breaches of decorum were not uncommon. Except in Barbados, South Carolina, and Georgia the members were paid for their services. The Speaker was elected by the House and approved by the governor; the clerk, except in Massachusetts and North Carolina, and the sergeant-at-arms were governor's appointees. In Bermuda the Speaker was elected every fourth year, a practice which the Board of Trade wholly forbade because not in accord with the usage of Parliament. The right of the Crown, through the governor,

1 We have the standing orders for Pennsylvania (Votes and Proceedings, II, 218-19); Georgia (Georgia Col. Recs. XIV, 51; xv, 326); those for Virginia, first adopted in 1663 (Hening, 11, 206) and revised and extended in 1769 (J.H.B. 1769, p. 323); for Jamaica at various times (Cal. St. Pap. Col. 1675-6, pp. 215-18; 1702-3, p. 717; 1704-5, pp. 428-9; Long, 1, 55). For Barbados see Cal. St. Pap. Col. 1661-8, pp. 352-4; for New Hampshire see N.H. Prov. Pap. V, 325:

"Journal of Josiah Quincy, Jr.” Proceedings, Mass. Hist. Soc. June 1916, p. 452.

THE SPEAKER

43I to reprove or reject a Speaker was absolutely insisted on.1 The Speaker had a position of honour and respect within the Assembly, though in the actual exercise of authority his position varied in the different colonies. He controlled the business of the House, and saw that it was conducted with order and propriety. He issued writs to the sergeant-at-arms to bring persons before the House for examination or reproof, and served as the mouthpiece of the House in communicating with the governor or council or the outside world. While there is no reason to suppose that the Speakers anywhere were intentionally partisan, except in their opposition to the prerogative, the only one who consciously followed the non-partisan example of Speaker Onslow in England was John Randolph of Virginia. He promised when elected in 1734 to make his own "fancies and humours" subservient to the rules, and begged the House to lay aside illgrounded conceits, prejudice of opinion, affectation to popularity, and private animosities or personal resentments.2 Randolph lived up to his pretensions and gave to the speakership in Virginia exceptional dignity. Though in general the Speaker could vote, he rarely exercised the privilege, except to break a tie, but whether he made use of this privilege in all the colonies is not clear. The Speaker, the clerk, the clerk's assistant (if there was one), the sergeant-at-arms, and the mace-bearer were all robed in Virginia, North Carolina, South Carolina, Georgia, New York, and Maryland, and probably in the West Indies; and the tendency towards ceremonial manifested itself clearly as the years passed and the Assembly grew in popular esteem. In North Carolina, South Carolina, Georgia, Virginia, and it may be elsewhere, a mace was borne before the Speaker on his entrance and laid on the table while the House was in session. In Jamaica it was borne before the governor. Usually the House had a chaplain (except in Georgia), or at least a clergyman invited to conduct prayers, and the members generally attended church in a body at the opening of the session. Proceedings were conducted secretly until after the middle of the century, when galleries or a bar were built in Massachusetts, Rhode Island, and Virginia5 for the accommodation of such of the public as the members might invite to attend. These galleries could be cleared at any time should secrecy be desired. In 1773 Quincy wrote of Pennsylvania, "Their debates are not public, which is said now to be the case of only this House of Commons throughout the continent." In consequence of this publicity, a change took place in the character of the oratory in the chamber, because henceforth it was of use in influencing public opinion. In the passage of bills, the familiar parliamentary system of three

Bell and Parker, Guide, p. 113.

2 J.H.B. Virginia, 1734, p. 174; 1736, pp. 239 seqq.

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In Virginia the Journal records but nine such instances, for example, 1720, p. 300.
Moore, G. H., Prytaneum Bostoniense, pp. 11-25; J.H.R. Massachusetts, 1773-4, p. 26.
J.H.B. Virginia, 1764, p. 61; 1766, p. 44.
" "Journal", p. 476.

readings prevailed everywhere except in the corporate colonies, but with some variations from English practice. A bill might pass through its three readings in one day or be prolonged over many weeks. It was always read in full at each reading and not merely by title, and debate might follow in each case. It might be rejected at the first reading or, as in Massachusetts, when first presented by individual or committee, if a majority of the House were opposed, and so not be introduced at all. In North Carolina an unusual custom prevailed of sending the bill after each reading to the council for its assent before passing the measure on to the second or third reading,1 thus indicating a very close correspondence between the two bodies and establishing a practice unknown elsewhere. Bills might originate with the governor, the council, the Speaker, a committee, or an individual member of the House, but in practice the last two usually initiated bills, the House generally appointing them for the purpose. Money bills had to originate with the popular body and these the council was not allowed to amend, though it could and did amend other bills. If the two bodies disagreed, agreement might be reached by adjustment or conference, or the bill might be abandoned altogether. When finally passed by both Houses, the bill went to the governor and eventually to the Privy Council in England. Votes were generally indicated by rising, but the ballot was used, though the Board of Trade deemed it irregular.2 In Barbados the ballot was used in the election of the Speaker, who in the early years was accustomed to keep the chair for only three sittings, thus rendering frequent elections necessary. There is evidence, in Virginia, of a division, one side leaving the room, with tellers appointed to take the vote. That the House of Commons was the great exemplar is clear, not only from the actual procedure adopted in the colonial Assemblies, but from the not infrequent consultation by governor, council, and Assembly of the Journals of the House of Commons and the House of Lords, which with the Statutes at Large and many legal treatises were available in most of the colonies.

Until 1763, the leading constitutional issue in America was the integrity of the royal prerogative as embodied in Orders in Council, in royal mandates and warrants, and in instructions to the governors, all of which the authorities at home were endeavouring to maintain in the face of the growing power of the popular Assemblies. The prerogative was not exercised in Connecticut and Rhode Island, where no such conflict took place, and in Maryland and Pennsylvania the issue differed in form, though not in principle, owing to the dominance of the proprietary element. But not a royal colony escaped. On one side was the King, the Privy Council, the Secretary of State, the N. Carolina Recs. IV, 565 seqq.; v, 281 seqq.; VII, 357 seqq.

2 Cal. St. Pap. Col. 1704-5, pp. 428-9.

33.H.B. Virginia, 1736, pp. 253, 260; 1738, p. 347; 1762, p. 55; 1764, p. 258. Cf. N. Carolina Recs. IV, 569.

CONTROL OF THE FINANCES

433 Board of Trade, the royal governor, and the royal appointees; on the other the popular Assemblies, which slowly but surely were breaking down the British system of government in America and eliminating the control of an outside authority resident across the sea 3000 miles away.1 Having secured the right to initiate legislation, as they had everywhere done before the end of the seventeenth century, they were in possession of a position of strategic importance, from which advances were possible in many directions. As they perfected their organisation and established their privileges, they built up a machine to use against their governors that was effective because it possessed much of the strength and efficiency of the Parliament at home. The home authorities refused to recognise the parliamentary status of the colonial Assemblies, but inasmuch as they never adequately backed up their governors in America, the latter, over and over again, were incapable of anything more than empty protest and denunciation. In their control of the finances the Assemblies had another powerful instrument wherewith to bend the governors to their will, for the King had no adequate revenue in America that could be used to free all his appointees from dependence on the popular body, and Parliament was willing to appropriate money from the English Exchequer only in the cases of Nova Scotia, Georgia, and the Floridas. Except for the grant of the 4 per cent. and the two shillings a hogshead duties, the only instance in which the Crown obtained the passage of a permanent revenue bill in a colony was in Jamaica, where, the controversy having lasted for nearly fifty years, the grant in 1728 of £8000 a year to the King in perpetuity brought the struggle to a close.2 But even this amount was never sufficient to meet the expenses of the colony, so that there too the Assembly was able in part to control appropriations. The determination of the Assemblies in all the royal colonies to dispose of the money thus appropriated, through treasurers appointed by themselves, brought them into sharp conflict with the Royal Instructions, which enunciated the principle that though the Assembly might raise the money, the King through his governor was to say how it should be spent. Only in North Carolina and Barbados3 did the Crown ever yield on this point. Incidental to this issue, but of less importance, was the question of the governor's salary, which was troublesome only in New Hampshire, Massachusetts, New York, and New Jersey; for elsewhere, in the South and the West Indies, the governors were paid from such royal revenues as the quit-rents, the two shillings a hogshead in Virginia, the 4 per cent. in Barbados and the Leeward Islands, and the permanent revenue in Jamaica. Controversy, at times sharp and prolonged, arose over the appoint

1 See the writings of Greene, Osgood, Burns, and Labaree.

The documents relating to the passage of this act, one of the most important in the constitutional history of Jamaica, can be found in C.O. 137/13, 14, 16, 17.

3 N. Carolina Recs. II, 141; vII, 443; Cal. St. Pap. Col. 1710-11, pp. 79–80, 115-16, 153, 218, 367.

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