IT has been seen that, although on the one side the governor had in various ways considerable power over the assembly, the latter on the other hand had a still more effective weapon in its control of the purse. At first the assembly used this power merely to check abuse of executive functions, but it did not stop there: its next step was to deprive the governor even of the actual executive power itself in certain important cases.

     There can be no doubt that it is the tendency of the legislature, when once firmly established, to encroach upon the proper functions of the executive, especially by minute supervision and control; and that in the case of the colonial assemblies this tendency was greatly strengthened by the misconduct of governors.¹ The corruption in the provincial governments also served to call the attention of the people to the usages in the charter colonies of New England, where the executive as well as the legislature was representative, and where a very important part of the executive business was performed by committees of the assembly. It is true that much of the New England republican system was in the nature of the case impracticable in the provincial governments, since in these colonies the governor himself could not be got rid of, but had to be accepted as the agent of the crown, and as such constantly in opposition to local interests. The popular policy was, therefore, first to insure as far as possible the governor’s

dependence upon the assembly by the system of temporary grants, and secondly to weaken the executive as far as possible by the transference of many of its proper functions to the assembly.

     Of the reality of this New England influence upon the other colonies there can be no doubt. New Englanders very early pushed out into the other colonies. The New England element in Long Island made itself felt in the earliest politics of New York; and to other provinces also these transplanted New Englanders were likely to carry with them the political spirit of the Puritans. It seems to have been very early recognized that these settlers could best be attracted by liberal political institutions. There is evidence, too, that the practice of one colony was occasionally cited by the assembly of another.¹ In the New Hampshire records of 1755 are recorded the votes of the Massachusetts General Court appointing a committee of war.² In 1743 Governor Morris of New Jersey wrote of the members of the assembly: “They are gen^lly so fond of the example of the parliament of 1641 & that of their neighbours in Pensilvania & New England, that until some measures are taken in England to reduce them to propper limits I suspect they will not mend much.”³ Governor Sharpe said of the Maryland assembly in 1758 that their minds were “infected with the Disputes of the Pensilvanians.”⁴

     These are only a few chance illustrations, but they leave no room for doubt that the constitutional life of the different colonies was not isolated and independent, that tendencies which made themselves felt in Massachusetts or Pennsylvania had a very real influence in New York and Maryland. By the formation of Massachusetts into a royal government the

republicanism of that colony lost something of its completeness; but on the other hand it gained in influence, since now for the first time the traditions of the old republican system had been placed upon a substantial footing and received legal recognition within a royal government. The example of Massachusetts might now be cited with greater force by the popular party in other governments; and Massachusetts thus became the natural medium through which these New England ideas were communicated to the other colonies. The influence of Pennsylvania made itself felt in a lesser degree but in much the same direction, since here also under the liberal charter of the founder, the people and the assembly had made serious inroads upon the executive authority of the governor.

     Among royalists the leadership in these democratic tendencies was very generally attributed to New England. Chalmers says of the policy of temporary grants: “That profound determination the New-English imparted, with other lessons, to every colony.”¹ Governor Cornbury wrote of the prevalence of republican ideas in New York and New Jersey, especially in the east end of Long Island, “where they are generally Commonwealths men.”² Governor Nicholson of South Carolina wrote in 1724 that the “spirit of commonwealth-maxims, both in church and state, increase here daily,” chiefly, as he supposed, by the influence of the New Englanders.³ Governor Cosby of New York, writing in 1732, said: “Y^e example and spirit of the Boston people begins to spread amongst these Colonys In a most prodigious maner.”⁴

There can thus be no doubt of the reality of this New England influence or of its character.

     The assembly had gained its power over the governor chiefly through its control of the purse: it was therefore natural that the first assumption of executive powers by the assembly should be in the department of finance. The assembly, and within the assembly the House in particular as the body invested with the exclusive right of granting the people’s money, felt that it had also the right in its representative character to determine how that money should be spent. The representatives claimed the right not merely to appropriate money in general terms, but to define narrowly and in detail the uses to which it was to be put, holding that it was their right and duty to provide all necessary safeguards for a proper application of the money to the purposes for which it was intended. It is clear that this view might easily have led to an assumption of powers properly executive.

     Reference has already been made to the fact that the governor’s financial powers had been brought within very narrow limits by the practice of appropriation in detail, by reason of which he had come to have hardly more than the power of an accounting officer, issuing his warrants in accordance with the detailed appropriations made by the assembly, and having very little real discretion. It will now be seen that even this function was in some cases taken from him by the assembly, though it is hardly safe to say that this transference was general; in fact, though there are many illustrations of such action, the practice was nevertheless in all probability usually regarded as exceptional and irregular. It is important to note, however, that this part of the governor’s prerogative was under some circumstances invaded in almost all the colonies. In New York at one time the assembly appropriated salaries to be paid without any warrant from the governor, though it seems finally to have retired from this position and to have

allowed salaries to be issued by the governor’s warrant.¹ Governor Dobbs of North Carolina complained that payments were made without his warrant; and even in Virginia Governor Dinwiddie felt himself obliged to assent to a bill entrusting the disposition of funds to commissioners.² In Pennsylvania it was a common practice for the speaker to issue orders upon the treasurer for the payment of money; in the case of the governor’s salary this was regularly done.³

     The governor’s power of issuing warrants was reduced to a mere formality by the requirement that money, even when duly appropriated, should not be drawn out of the treasury without a special vote of the assembly. South Carolina, for example, imposed this restriction.⁴ In Massachusetts the General Court assumed the right of examining the muster rolls, passing upon each item, and voting an order on the treasurer for its payment if approved. The governors protested against this practice, but the House persisted in it for many years, until finally the crown instructed the governor not to allow such provisions in future acts of supply; whereupon the House, after a vigorous contest, yielded under protest.⁵ In New Hampshire the assembly claimed and exercised the same power, though it was denounced by Governor Wentworth as an invasion of the prerogative.⁶

     Thus the assembly had in many cases deprived the governor of even that limited control over provincial finance involved in the requirement of his warrants for the payment of public

money. In other financial matters also the House, either directly or through its committees, assumed functions properly executive in their character.¹

     From the fundamental assumption that the assembly as the representative of the people was the constitutional guardian of the people’s money, there was only a short step to the claim by that body of the right to appoint those officers who were charged with the collection, custody, and disbursement of the public funds. The prevailing doctrine of the colonial assemblies upon this point is briefly summed up in the following resolutions passed in 1753 by the assembly of Jamaica: “Resolved, That it is the inherent and undoubted Right of the Representatives of the People to raise and apply Monies for the Service and Exigencies of Government, and to appoint such Person or Persons for the receiving and issuing thereof as they shall think proper, which Rights this House hath exerted, and will always exert, in such manner as they shall judge most conducive to the service of His Majesty, and the Interest of His People.”²

     The most important exercise of this assumed right was the appointment by the assembly of the provincial treasurer, a practice which prevailed in a majority of the provincial governments. In New Hampshire, New Jersey, and Georgia it would seem that the assembly had not succeeded in wresting from the executive this appointing power.³ In Maryland, there

appears to have been a conflict of precedents.¹ When the assemblies had gained this power, it seems to have been usual to make the appointment by formal act of assembly; sometimes, however, it was done by simple resolution of the House of Representatives.²

     Even when the appointment was made by act of assembly the lower house clearly had the real choice; for such a bill, like all others having to do with the raising of money, would originate in the House, and amendments by the council would be sure to meet with resistance. In North Carolina in 1760 the council ventured to change the name of the treasurer as given in the bill of the House, and the House agreed to make the change in this case, saving “the inherent right of this House, to nominate Persons to be appointed to the office of Public Treasurers.”³ In South Carolina the Representatives, or “House of Commons,” as they styled themselves, at first nominated the treasurer, but they were forced to consent to appointment by act of the governor, council, and assembly.⁴ In Virginia there was for a time a rule which kept the treasurership practically in the hands of the House exclusively; this was the provision that the speaker should be ex officio treasurer.⁵

     Something should be said as to the process by which the appointment of treasurer came into the hands of the assembly. In Massachusetts the charter itself gave a constitutional sanction

to the practice, by the provision that all civil officers, with the exception of those connected with the administration of justice, should be appointed by the General Court.¹ In New York the issue arose during Lord Cornbury’s corrupt administration, when the assembly of 1703 passed resolutions requesting, in view of previous misapplication of public money, that some person might be commissioned as treasurer by the governor, “for the receiving and paying of such Monies now intended to be raised for the publick Use, as a Means to obstruct the like Misapplication for the future.”² In 1705 the assembly passed a vote declaring its intention of appointing a treasurer “for receiving and paying the publick Monies to be raised by this House.”³ By 1715 the House had apparently carried its point, for in that year Governor Hunter wrote that by the new supply act the funds were lodged with the treasurer, adding that “no Act could lodge them other wise.”⁴ In 1768 the matter had gone so far that the treasurer of that year was invested with his commission by the speaker and gave bond to the speaker, a circumstance indicating to what an extreme point had been carried the conception of the treasurer as peculiarly an officer of the lower house and almost independent of the crown.⁵

     In Virginia the treasurer was regularly appointed by act of assembly from the year 1704 until 1738, when the office was attached to the speakership of the House.⁶ This system proved a failure, however, and the treasurer was again appointed as before by act of assembly, in which the lower house probably had the right of nomination.⁷ In South Carolina, acts were passed appointing receivers of public taxes. In 1707 it was enacted that the “Commons” should have the right to nominate the public receiver of the province; and although this act was repealed by the proprietors, yet in 1721 it was

decreed that the treasurer should thereafter be appointed by the general assembly.¹ This appointment was made by ordinances, which like statutes required the concurrence of governor, council, and assembly. The movements in the other provinces present no peculiar features which require discussion here. In one colony at least, that of North Carolina, the home government made a virtue of necessity by instructing the governor that, although the appointment of treasurers by act of assembly was irregular, yet it would be improper to set aside a usage of so long standing.²

     The appointment of the treasurer by the assembly took the control of provincial finance almost entirely out of the governor’s hands and placed it in those of an officer who was generally regarded as “solely and entirely a servant of the assembly.”³ The treasurer was often a person of considerable importance. In Virginia, as has been seen, the speaker was for a time treasurer also, and consequently possessed great influence, which he was charged with using in improper ways.⁴ In 1731 Governor Burrington of North Carolina wrote that the treasurer Edward Moseley was speaker and manager of the assembly.⁵ Chalmers charges the treasurer of North Carolina, John Starkey, with having, like the Virginia treasurer, made a corrupt use of the power he possessed over the members of the assembly.[⁶]

     This union of legislative leadership with financial administration

suggests an interesting comparison with the parliamentary system; but the combination in one person of the three functions of leader of the House, speaker, and minister of finance is perhaps without precedent. If it were profitable to dwell upon what might have been, it would be interesting to consider how this development might have worked itself out had it been uninterrupted by the Revolution; not improbably it might have led ultimately to a modified form of parliamentary government.

     The interference in appointments on the part of the assembly was not confined to the choice of treasurer, but extended to a large number of other offices, chiefly those concerned with the collection or payment of public money. It has been noticed that in Massachusetts the assembly had a constitutional right to appoint administrative officers, and the example set by Massachusetts was followed in nearly all the colonies. In New York, collectors, excise-commissioners, and commissioners for various other purposes were appointed by act of assembly; indeed, it was a standing ground of complaint on the part of the New York governors that the assembly constantly assumed this right of exercising executive functions.¹ In New Jersey, during Queen Anne’s War, the assembly passed an act for raising three thousand pounds, naming in this act two treasurers, commissioners for managing the expedition against Canada, and a commissary.² Again, during the last French war commissioners were appointed by the assembly to carry out the provisions of the military supply acts; but the home government objected strongly to this action and forbade the governor’s assent to future acts of that character. Governor Bernard, however, failed to comply with his instructions on that point.³

     Outside of Massachusetts the two provinces which carried this policy to the greatest extreme were South Carolina and Pennsylvania. In South Carolina the practice had grown up under the weak proprietary administration and had secured a hold too strong to be shaken off. Here in 1721 it was enacted that the treasurer, comptroller, powder-receiver, and all other civil officers paid out of the public funds should be appointed by the assembly.¹ Among other officers appointed in the same way were commissioners for military supplies, Indian agents, and Indian commissioners.² In 1729 an effort was made to stop the practice: Governor Johnson was directed not to give his assent to any law for the appointment of officers, and he declared his intention of insisting on a strict compliance with his instructions.³ The effort had little effect, however; for Johnson’s successor, James Glen, wrote in 1748: “Almost all the places of profit or of trust are disposed of by the General Assembly . . . The executive part of the government is lodged in different sets of Commissioners . . . The above officers and most of the Commissioners are named by the General Assembly, and are responsible to them alone. . . . Thus the people have the whole of the administration in their hands.”⁴

     In Pennsylvania the assembly assumed the appointment of nearly all administrative officers. In passing an act for any purpose it was customary for the assembly not only to provide the necessary official machinery for its enforcement, but also to make the actual appointment of the officer. Thus, for example, in the loan acts the assembly appointed trustees of the loan office;⁵ in an act levying taxes, special commissioners were named to enforce its provisions.⁶ Naturally

therefore it became customary for persons desiring such appointments to apply not to the governor but to the assembly; an example is the petition, in 1750, of R. Shewell of Philadelphia, baker, praying to be appointed flour-brander for the city and county of Philadelphia.¹ In 1757, after the assembly had declared that the nomination of Indian commissioners was its “settled right,” as it was the right of the British House of Commons, the governor’s message objected only to the choice of commissioners from the members of the assembly, not to that body’s exercise of the right of nomination.² Andrew Hamilton, speaker of the assembly, on retiring from public life in 1739, made a speech in which he congratulated the province on the fact that it had no officers except those who were necessary and who earned their salaries, and that these were generally either elected by the people or appointed by their representatives.³

     These are the most striking cases; but in all the colonies the assemblies had, to a greater or less extent, assumed the exercise of the appointing power.

     From the administration of finance and the appointment of officers, the assembly was naturally led to encroachments upon another department which may with even greater propriety be regarded as the exclusive right of the chief executive. If there is any function which especially requires a concentration of authority in a single head, it is certainly the command of military forces and the conduct of military operations. Yet even into this field the assembly forced its way,

availing itself of the exceptional opportunities for such encroachments afforded by the frequent French and Indian wars of that period. The urgent need of supplies for military purposes occasioned by these wars enabled the assembly, in making its grants of money, to impose the most arduous conditions. This power it used in three general ways. In the first place, in granting military supplies it prescribed in detail the purposes for which they were to be expended, dictating the course of military operations and the disposition of troops. Secondly, it left in the hands of committees of the assembly, or of commissioners appointed by act of assembly, the disposition of these funds, often too with a very considerable control of the conduct of military enterprises. Finally, through the appointment and removal of officers, it went so far as to interfere with the discipline of troops.

     Of all these ways in which the assembly infringed upon the military prerogative of the governor there are abundant illustrations. Take, for example, the first instance,—the power assumed by the assembly of regulating the employment of military forces. The Pennsylvania assembly voted in 1757 that of fourteen hundred men to be enlisted, three hundred should be employed in garrison and the remaining eleven hundred in ranging and scouting parties.¹ Again, an order of the Massachusetts General Court in 1722 provided for the raising of a certain number of men for a military expedition, directing that three hundred of these should be posted at Penobscot and the rest at different places on the frontier. The governor insisted that by the charter he had the sole direction of military forces; but he was compelled to submit in order to get the necessary supplies.² Under Governor Shirley, who was anxious to keep the assembly in good humor, this tendency to dictate in military affairs worked itself out almost without restraint and was the cause of serious embarrassment to his successor.³ Thus in 1758 the House, following precedents established under Shirley, undertook in voting pay for the

forces on the frontier to specify the number of men to be employed at each point. Governor Pownall declared this an infringement of his rights under the charter; but he finally gave his assent under protest, declaring that he did so only on account of the pressing necessity of the situation.¹

     Of the second class of encroachments, namely, of the practice of controlling the conduct of military operations by committees of the assembly or through commissioners appointed by the assembly, there is equally good evidence. In 1709 and 1711 the New York assembly was allowed to name commissioners to take charge of the commissariat; and, later, commissioners of fortifications were appointed in the same way.² In 1722 the representatives in the provinces of Massachusetts and New Hampshire passed votes providing for the appointment of committees of war to concert plans for the conduct of the war and to exercise a certain supervision; and although in each case the plan was then blocked by the opposition of the council, yet in 1745 both assemblies appointed committees of war, which assumed the management of the commissariat.³ The practice was most general during the last French war. The New Jersey military supply acts were regularly executed by commissioners named in the acts. The home government, it is true, forbade the governor’s acceptance of such acts, but it was unable to enforce its prohibition.⁴ A similar course was taken in Pennsylvania, where serious difficulties arose on one occasion from the failure of the commissioners to agree with the governor as to the proper course to be pursued.⁵ With reference to a Maryland bill of the year

1757, the governor declared that according to its provisions the troops were to be “under the Command of no Body but the Agents,” who were appointed by the assembly.¹

     Nowhere was this policy carried farther than in Massachusetts and New Hampshire. In Massachusetts a committee was appointed by the General Court to consider projects for carrying on the war, with instructions to report to the assembly; another was named to take charge of provisions and other supplies. A committee of war consisting of five members was also chosen, to sit at or near Albany and to follow instructions from the General Court “for the more effectual carrying into Execution the intended Expedition against Crown Point.”² Similar action was taken in New Hampshire, where perhaps the most extreme measure was that adopted in 1756, when agents were appointed to repair to Albany and to transact there any affairs relating to the expedition, following “such Instructions as they may Receive from time to time from the Generall Assembly.”³

     Finally, the assembly was disposed to interfere with the discipline of the army in the matter of appointment and removal of officers. An indication of this tendency has already been seen in the appointment of special commissioners by acts of assembly, which sometimes appointed paymasters and commissaries, and apparently such officers as chaplains and surgeons.⁴ It did not often, if ever, claim the right directly to appoint military officers in the strict sense of the term, but it sometimes interfered seriously with the discipline of the troops by attempting to enforce the removal of such officers. Thus in 1722 the Massachusetts assembly summoned the commanding officer of the army to appear before it and explain why certain orders voted by the House had not been executed;

and it finally compelled his discharge by refusing to vote his pay.¹ The South Carolina assembly passed a very extreme measure in 1721, by appointing Indian commissioners, who among other duties were to inspect forts and garrisons and to give any necessary orders for the reform of abuses. The military officers were bound to carry out orders of this kind; and if they failed to do so, the commissioners were empowered to suspend them and to make temporary appointments in their places.²

     From these facts it is clear that in military affairs the assembly had seriously encroached upon the governor’s prerogative. Indeed, this statement of the evidence gathered from the practice of the different provinces may be summed up with the remark of the historian Chalmers in regard to the conduct of the last of the French wars: “The king’s representative acted merely as the correspondent of his ministers. The war was conducted by committees of assembly.”³

     In regard to the interference of the assembly with external relations a few words will suffice. These external relations, it will be remembered, were chiefly of two kinds,—inter colonial interests and Indian affairs. As to questions arising between the colonies, it may be said that the appointment by the assembly of commissioners to deal with boundary disputes is frequently recorded by nearly every colony, and was finally sanctioned in some cases by the authority of the crown itself.⁴ In regard to relations with the Indians, the assembly showed a similar disposition to assert its control, as a few illustrations taken almost at random will sufficiently indicate. In 1722 the Massachusetts House voted that the speech to be made by the governor at a meeting with delegates of the Iroquois nation should be spoken in the name of the assembly, and that the House of Representatives should be present. The governor at first refused, but he was finally obliged to submit.

The House had in the first place proposed that the speech should be composed by a joint committee of the two houses; and although this was not done, yet the speech was actually submitted to the assembly for its approval.¹ Again, in 1723, the House is found sending instructions to the commissioners appointed to confer with the Five Nations at Albany.² In South Carolina and Pennsylvania Indian commissioners were appointed by the assembly.³ In 1755 the South Carolina assembly voted that the governor and council should take the counsel of several members of the assembly in their negotiations with the Creeks.⁴

     It has now been seen, perhaps in wearisome detail, to how great an extent the assembly had in various ways encroached upon essentially executive functions of the governor. These usurpations, or whatever else they may be called, probably reached their height during the last of the Indian wars, when the pressure upon the governors was of course stronger than at any other time. It is probable, however, that if the political development of the colonies had not been in a sense interrupted by the events of the revolutionary period, the assemblies would have made even greater advances. Already indeed in some of the provinces the governor’s power had been reduced within very narrow limits. Governor Glen’s statement in regard to South Carolina, to the effect that the executive power was very largely in the hands of commissioners appointed by the assembly, applies fairly well to Pennsylvania also.⁵ In regard to the Massachusetts government the Board of Trade wrote in 1757: “Almost every act of executive and legislative power, whether it be political, judicial or military, is ordered and directed by Votes and Resolves of the General

Court, in most cases originating in the House of Representatives.”¹ A similar statement in regard to New York was made by the Board in 1752.² Even at the close of Queen Anne’s reign, Chalmers said of the New York government that it “was really changed; from being monarchical, it had already become democratical.”³

     Without undertaking to pass a final judgment upon the policy of the assembly or the opposition of the home government, some conclusions may fairly be drawn. In the first place, it is clear that such a policy was not likely to bring about the most effective administration of public affairs, involving, as it did, the practical breaking off of large or small fragments of the governor’s prerogative, some of which were given either to committees of the assembly or to the assembly itself, and others to officers more or less responsible to the assembly. The policy, it is true, accomplished the end which it had in view, namely, the weakening of the governor, who, if not personally an object of distrust and suspicion, was at least looked upon as the representative of interests at variance with those of the colonies. Certainly, however, the result was a system of administration far from ideal. There was no concentration of responsibility, no unity of administration; and yet whether these evils were any greater than those which would have grown up, which indeed had already made themselves felt, under the old system contemplated by the commission and instructions, is a question not to be hastily decided.

     Though it be admitted that any lack of administrative efficiency was more than made good by the enforcement of the principle of popular control over the executive, yet the fact must be recognized that the system was intrinsically corrupt, corrupt not only in its immediate results but in the vicious traditions which were left behind. This influence was manifest in the first constitutions of the independent States, as

shown in the very general distrust of the executive expressed in those instruments, in the tendency to make the governor so far as possible dependent upon and subordinate to the legislature.

     The experience of a few years, however, proved the folly of this narrow course. It became evident that jealousy of the executive had no place in a system in which the executive as well as the legislature was the representative of the people; and gradually the vicious traditions of the old régime gave way to the sounder principles of the Federal constitution.