executive authority, and exercising only a negative influence on the passage of laws, the colonial council was never able to grow into a constitutional body comparable with either the House of Lords or the Privy Council. The members stood for honour and dignity, personal influence and family pride, but though they struggled at times to control the governor and to resist the Assembly, they never succeeded in winning more than an occasional and temporary victory. Never had they the full confidence either of the King or of the colony. The real test of the governor's influence was evinced not in his dealings with the council but in the skill with which he was able to preserve friendly relations with the Assembly. This representative body had started as a small rudimentary group of delegates, exercising no more power than they possessed by grant of company or proprietor, for the purpose of co-operating with the governor and council in matters of legislation. After corporate and proprietary control had come to an end in Virginia and Barbados, the Assembly was continued by the King in his instructions to his governors, but received little attention in England until, in the period from 1675 to 1680, the Lords of Trade began to investigate, more carefully than had any council before that time, the conditions of government in America. Following the failure of the "Poynings's Law" experiment in these two provinces, the Assemblies, which had at no time been seriously menaced by that attack upon their local independence, established their right to exist, and finally, after the Revolution of 1689, were recognised everywhere as essential to the proper organisation of a royal province. From this time forward every set of instructions to the governors contained specific details regarding the calling of the Assembly and its constitution and powers-details which steadily increased in number and precision as the years passed. But the Board of Trade and the Privy Council had no intention of allowing the Assembly to get beyond control. Taking the position that the popular branch of the government owed its very existence to the King's will and pleasure, they deliberately circumscribed its powers in the governor's instructions in order to demonstrate its inferiority as a law-making body. According to these instructions, the governor was empowered to summon, prorogue, and dissolve the Assembly and even to control adjournment, if the period was longer than from day to day.1 In the early years the Assembly in Barbados controlled its own adjournment, but towards the end of this period it got into the habit of asking the governor's permission to adjourn. This early peculiarity may, perhaps, be explained by the fact that the Assembly sat for but a few days at a time, so that frequent meetings and frequent adjournments were necessary. The governor 1 A frequent subject of dispute in most of the colonies. 2 Frere, G., Short History of Barbados, p. 96. POSITION OF THE ASSEMBLY 423 could refuse to approve its choice of speaker, could issue writs of election, determine membership, and select the place of meeting.1 He had the right to suggest legislation, could scrutinise very closely the character of the laws passed, and was expected to veto such as were not in accord with his instructions or were repugnant to the laws of England. By successive instructions and by decisions of the Crown lawyers or of the counsel to the Board of Trade, the Assembly was forbidden to concern itself with any matter that lay outside the province it represented or which trespassed upon the prerogative of the King or the powers of Parliament. It could not interfere in any way with the laws of trade or discriminate in favour of the colonists at the expense of British merchants engaged in colonial trade. It could not pass private acts without a clause saving the rights of the Crown, bodies politic and corporate, and all private persons, nor could it pass these and other acts, the nature of which was specified, without first obtaining the King's consent or introducing a suspending clause binding the colony not to enforce the act until the King's will were known. Thus the freedom of the Assembly was hedged in at many points by the instructions which the King sent to his governor, and it was against the barriers which such instructions set up that the Assemblies in the royal colonies in the eighteenth century fought with all the resources in their possession. They opposed "ministerial mandates" and government by instructions on the ground that such were inimical to the liberties of a free people, and would have no more of them than could be helped. But the Privy Council and the Board of Trade viewed the instructions as a fundamental part of the constitution of a royal colony, to be obeyed as the commands of the King. It may be said with much justice that the question of the King's authority as expressed in his instructions to his governors lay at the very centre of the colonial conflict. Even if an act of Assembly passed safely the tests that the British authorities imposed upon it in the instructions-tests which they deemed wholly warranted because "founded on the principles of reason and justice"-it had still to face a further exercise of the prerogative in the right which the King reserved to himself of confirming or disallowing the act after it was received in England. The practice came into use slowly and was not fully adopted before the eighteenth century, but it proved an efficient form of colonial control, in many ways beneficial to the colonists themselves. Particularly in the earlier period, it prevented the colonists from passing hasty and illconsidered legislation that was often obscure, loosely worded, and even technically poor and contradictory, and it served to improve legislation and to prevent local retaliatory measures in matters of general concern. The English authorities would not tolerate any acts 1 Another subject of dispute, particularly in Massachusetts Bay (Acts and Resolves, 11, 234 n.) and Jamaica (C.O. 138/20). 2 A.P.C., Col. m, 164. contrary to the laws of England which affected trade or the interests of British merchants, or infringed on the royal prerogative. In the first two particulars they were successful in their efforts; but in the third they made little headway, for the popular parties in the colonial Assemblies fought the prerogative in whatever form it appeared, and employed many devices to thwart the royal will. They re-enacted laws that had been disallowed, passed temporary acts chiefly concerning revenue, and paid as little attention as they could to the suspending clause, which the Pennsylvania Assembly declared to be "destructive to the liberties granted to the people of the province by the royal and provincial charters, injurious to the rights of the proprietors, and without precedent in the law of the province". It is true that in many instances the colonies suffered hardship and injustice because of the disallowance, but it cannot be said that in principle such a review of colonial legislation was either unwise or objectionable. The trouble with the disallowance, as with other forms of royal control, was that it admitted of no proper adjustment to the changing needs and sentiments of the colonists.2 It tended to become more inflexible as time went on, and was as rigidly interpreted just before the American Revolution as at any time in its history. The British regulations were never more rigorously enforced than after 1763, and that, too, at a time when the colonial Assemblies were reaching the maximum of their strength and influence.3 The growth to maturity of the colonial Assemblies is the outstanding feature of the old British system of colonial government. Though legally conceived as inferior bodies, they had acquired from the beginning deep-rooted notions as to the rights of Englishmen in all parliamentary matters; and the example of the parliaments of the Interregnum was early followed in Maryland, Virginia, South Carolina, and Barbados, where there were "parliament men already indoctrinated with the idea of parliamentary supremacy. Parliamentary privileges were early asked for by the Speaker of the House and granted by the governor in most of the royal colonies. Jamaica as early as 16775 and Virginia a little later "prayed in behalf of the burgesses now assembled that they might enjoy all those privileges that have heretofore at any time been used or indulged in by former Assemblies". The Speakers of Barbados and North Carolina did the same, though the record is of later date, when they 1 Root, Pennsylvania and the British Government, p. 119; Votes and Proceedings, Pennsylvania, IV, 254-6, 256-9, 262-4. For similar disputes in Jamaica see C.O. 138/20, pp. 49-50; for Georgia, Georgia Col. Recs. XIX, pt 1, 249; for Barbados, Bell and Parker, Guide, pp. 48, 52. 2 See C.O. 138/14, quoted in Bell and Parker, Guide, p. 211. 3 Andrews, The Royal Disallowance; Dorland, The Royal Disallowance in Massachusetts; Russell, Review of American Colonial Legislation. Fendall's, Matthews's, and Owen's parliaments in Maryland, Virginia, and South Carolina; and, for Barbados, see Cal. St. Pap. Col. 1661-8, no. 1017. J.H.R. Jamaica, I, 11, 23, 119. 6 J.H.B. Virginia, 1695, p. 1. CONTROVERSY OVER PRIVILEGES 425 asked for "the privileges necessary to the constitution of a free Assembly".1 The Assembly in Barbados was always less insistent on its privileges than were many of the other Assemblies and less sensitive to affronts on its dignity. The demand for privileges does not appear to have become until very late a regular part of its procedure. In New York the demand was made at the meeting of the first Assembly in 1691,3 and in 1695, three years after Massachusetts Bay received its new charter, its House of Representatives claimed "all the liberties and privileges of an English Assembly".4 With the beginning of the eighteenth century the custom was widely established, and the designations "House of Commons", "Commons House of Assembly", "His Majesty's Commons", and "Parliament", were already in use.5 The privileges, at first asked for and later taken for granted, were those customary to the Parliament in Englandfreedom of speech; freedom from arrest for members and servants, except in cases of treason, felony, and breach of the peace; freedom of access to the governor-a request dropped in Virginia after 1727; and favourable construction on all acts of Assembly. A common request was that the mistakes of the Speaker be not imputed to the House also omitted in Virginia in 1705, but resumed in 1738— which was usually a part of the Speaker's "excusatory" or "disabling" speech, made in Jamaica, Virginia, Pennsylvania, South Carolina, and Maryland, at the time of his election. In addition, the Assembly endeavoured to gain further advantages, such as the right to adjourn itself for longer than from day to day,' partly to protect itself against the governor, and partly to demonstrate its own view of the situation, that the exercise of functions necessary to the well-being of an Assembly was not a matter of grace or favour, but something that the King had no right to deny. By the eighteenth century, the phrase "ancient rights and privileges" was beginning to be heard; and in 1736 the Speaker of the House of Burgesses in Virginia asserted that all these privileges had been long enjoyed and were its undoubted right.8 The controversy over privileges was particularly keen in Jamaica, where in 1716 the governor threatened with extraordinary measures an Assembly which refused to grant supplies, and finally conceded the demand for privileges with the promise to allow them only so far as it was consistent with his instructions. This form of acceptance 1 C.O. 31/36; N. Carolina Recs. VI, 363. Cal. St. Pap. Col. 1661-8, pp. 352-4; 1679-80, p. 387; Frere, Short History, pp. 81-85. 3 J.H.R. New York, 1, 2. 4 Acts and Resolves, 1694-5, chap. iii, 1, 65, 89, 90 n., 130, 382. In Jamaica after 1689; Long, II, 9-10. • Maryland Archives, 1, 460; II, 10; VII, 335; XIII, 252, 350; xxiv, 327, 357. Pennsylvania Col. Recs. II, 517; ш, 140, 319-20. A.P.C., Col. III, p. 102; Hutchinson, T., History of Massachusetts Bay, 1, 257-8 for the case in Massachusetts; Georgia Col. Recs. XIII, 91, 92, 95, 98, 100, 101. 3.H.B. Virginia, 1727-40, p. 239; Votes and Proceedings, H.R. Pennsylvania, III, 320; S. Carolina Recs. 1, i, 529. continued to be used for many years. In 1764 the question was again raised, and this time the House took occasion to define its privileges without regard to the instructions, laying down in eight clauses its constitution. The Assembly was immediately dissolved, but a new Assembly met in 1765 and re-passed the resolutions of its predecessor. Prorogued, it refused at its next session to ask for privileges at all, apparently on the ground that it did not consider such recognition of the royal right to be necessary. In 1766 a new Assembly, taking even higher ground, declared that the House was the sole competent judge of its own privileges1 and that these privileges were not founded on Acts of Parliament or royal instructions, but were "a birthright, inherent in his Majesty's most loyal and dutiful subjects of the Commons of Jamaica and founded on the law of Parliament [lex parliamenti], which is part of the common law of England". The Assembly further asserted that such privileges were its rightful, lawful and undoubted inheritance, of which it could not be lawfully deprived while it continued in allegiance to the King, a point it attempted to prove, much as Virginia had done in 1736, by drafting a history of its constitutional rights. In this document it said that it held the same position in the constitution as did the House of Commons in England and enjoyed a superiority over all courts of justice with power to examine their conduct. "Here, as in England," it said, "we owe it to the wholesome and frequent exercise of such power in the representative bodies of the people that we are this day a free people." Later, it added, "The House has all the privileges of the House of Commons in England and no instructions from King or ministers can either abridge or annihilate the privileges of the representative body of the people of this island." Were it otherwise, it might have added, as did the New York House of Representatives on an earlier occasion, it would be "of pernicious and dangerous consequence to the liberties of the people".3 Thus the Assemblies in the colonies were becoming extremely sensitive to any infringement of their dignity. They resented reflections on the House or on any of its members, such as hostile remarks, damning of the Assembly, false or scandalous tales, derogatory petitions, printing of rules or proceedings without authority, libels, insults, or the sending of a challenge to a deputy. In Massachusetts the House legislated against all unnecessary outside noises made by those who drove by the State House in which the Assembly was sitting. Those guilty of such breaches of privilege or 6 1 Massachusetts very early took this ground. Acts and Resolves, 1, 89. 2 C.O. 137/32, 33, 34, 62; 140/40. In her unpublished treatise on "Parliamentary Privileges in the American Colonies” (Yale University Library), Miss Mary P. Clarke has given an account of this and other similar controversies. 3 J.H.R. New York, 1, 572. 5 See J.H.R. Jamaica, 1, 56, 243-5. ▲ N. Carolina Recs. II, 317-18; vп, 953, etc. Acts and Resolves, m, 360, 467, 516, 869; IV, 370. |