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. 3 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. m, 141; vII, 443; Cal. St. Pap. Col. 1710-11, pp. 79-80, 115-16, 153, 218, 367. CHBE I 28 ment of the colonial agent. This important personage, whose origin can be traced to the days of Cromwell and the settlement of Jamaica, had become in the eighteenth century a well-established bond of communication between the colonies and the mother country. The colonies needed representatives in England to look after their interests, and the authorities at home found it advantageous to have on the spot a spokesman for a colony, as is evident from the clause inserted in the charter to Penn in 1681 requiring him to keep an agent in England. The business of the agent was "to stand sentry and be watchful", guarding the welfare of the colony in such matters as the issue of Orders in Council, the passing of Acts of Parliament, the confirmation or disallowance of colonial laws, allowances for defence, disputes about boundaries, and other analogous matters. Long and heated quarrels arose over the questions of authority and control, appointment and tenure. Did the agent represent the colony as a whole, the governor and council, or the Assembly? By whom was he appointed and from whom did he take his orders? Eventually in most of the colonies the Assembly got control, and in some instances the governor was obliged to have his own agent in addition to the official agent of the colony. Such towns as Halifax and Boston had agents also; and in the case of Newfoundland, Cape Breton, Nova Scotia, Georgia, and the Floridas the agent was appointed in England by the King. The agents were frequently English attorneys, merchants, or even clerks in the Plantation Office, and they were watched over by the Assemblies, who reproved or commended them, examined their accounts, and dismissed them if they failed to give satisfaction. The West Indian agencies were far better organised and more influential than were those of the continental colonies, for West Indian interests called for group action, whereas it was rare for the continental colonies to combine on anything. Important men served in this capacity, and after 1750 the presence of such men in England, ready to act on a colony's behalf, had become a recognised and permanent feature of British colonial administration.1 Additional questions at issue between the governors and the Assemblies were as manifold as were the claims of the royal prerogative, and followed closely the attempt of the governors to maintain the prerogative and obey their instructions. Second only to finance and the control by the Assembly of the civil administration of a colony, was the control of the administration of justice, historically a branch of the prerogative, for as the Board of Trade said: "Her Majesty has an undoubted right of appointing such and so many courts of judicature in the Plantations as she shall think necessary for the distribution of justice".2 The Assemblies refused to 1 See Penson, L. M., The Colonial Agent of the British West Indies; Tanner, Colonial Agencies in England; Bond, The Colonial Agent as a Popular Representative. 2 New York Col. Docs. v, 333. OTHER FORMS OF ENCROACHMENT 435 accept this view of the case, and over and over again took into their own hands the establishment and regulation of the courts of common law for the colonies. Chancery courts and courts of exchequer they frequently opposed on the ground of expense, but they made little serious effort to prevent their erection by the governors. Their attempts to establish systems of judicature by statute were frequently unsuccessful and led to a great deal of friction and consequent ill will. The tenure of judicial employments was also a fruitful source of trouble, for the royal tenure continued only during the King's pleasure, whereas the colonists were coming to believe that judges should hold office during good behaviour or for life.1 The issue was joined in Jamaica, New York, New Jersey, and North Carolina, and laws were passed to that effect only to be disallowed by the Crown. Even the governors themselves sympathised at times with the position of the Assemblies, as when Edward Trelawney of Jamaica wrote that "a standing body of planters made judges for life would have a much greater influence and authority than the governor and council appointed by his Majesty".2 But the Board of Trade would have none of it. In the end the Crown won a Pyrrhic victory, for though the debate over judicial matters was less violent than that over finance, it involved much bickering and discontent, and marked the increasing dissatisfaction which the colonists felt with appointments made in England to civil and judicial offices in the colonies. Among the minor forms of encroachment upon the King's prerogative of which the Assemblies made use were these. They passed biennial and triennial acts limiting the duration of sitting, which the Crown, with some exceptions (New Hampshire and South Carolina) due perhaps to inadvertence, regularly disallowed because they infringed on the governor's right of summons and dissolution. They excluded certain officials from sitting in the Assembly, fearing the formation of a prerogative party in the House, and they forbade councillors to vote for Assemblymen, much as peers are not allowed to vote for members of the House of Commons to-day. They denied the right of the governor and Secretary of State to appoint clerks and other officials in council and Assembly and in some of the courts, on the ground that these bodies should control their own appointments. They opposed the governor's attempts at various times to see the journals of the lower house or to obtain information from the clerk, who was always sworn to secrecy. Finally, they claimed full right, in conjunction with the council, to shape legislation, and denied that the governor or even the Crown could veto or strike out clauses or riders, the latter a device frequently used to thwart the governor's wishes. In 1752 the Jamaica Assembly, in refusing to use a suspending 2 C.O. 137/25. 1 N. Carolina Recs. v, 1104. * Instructions, 1761, New York Col. Docs. vII, 479; New Jersey Archives, IX, 322–3. Cf. Cal. St. Pap. Col. 1677-80, pp. 441-5, 462, 496. clause or to repass acts modified by the Board of Trade, denied the right of the Board "to direct their procedure by any proposal or decision whatever". The conflict assumed different forms in different colonies, and victory lay sometimes with one side and sometimes with the other. Governor Benning Wentworth of New Hampshire, because he had greater powers of endurance, defeated the Assembly there in the controversy over membership, when the Assembly tried, by starving the province, to bring the governor to terms. But Governor Clinton in New York failed, partly because he was a weaker man in a more defenceless position, and partly because he was not adequately supported by the authorities at home. He wrote with some sarcasm both to the Secretary of State and to the Board of Trade that the prerogatiye could not be maintained by the governor alone. Upon the Home authorities must rest the ultimate responsibility. They might expostulate in orders, instructions, and letters, but words without continuous and consistent action were a lame and impotent weapon. The Assemblies disregarded the King's commands and gradually reduced to a minimum the governor's power and influence. Governor Knowles of Jamaica wrote in 1752 that the Assembly had succeeded in making itself the preponderant element in the government there, a state of affairs that existed in different measure in all the royal colonies. Thus the royal system of government in America was rapidly disintegrating in the decade before 1763; the prerogative had lost its force and its importance, and the representative Assemblies, themselves doing what Parliament had done a century before, had become the centres of actual government. British subjects in America had attained, in fact if not in law, an equal political status with British subjects in Great Britain, and their governing bodies had won a position of commanding prominence and authority, similar, each in its own sphere, to that which the British Parliament had won in the realm. It was the failure of the British Government to see this fact and to find a solution whereby equality might be substituted for subordination and subservience that in part at least brought on the American Revolution. |