THE governor’s accountability, like his whole official character, was two-fold: he was held by legal and administrative checks to his accountability to the home government, and by various practical and political checks to his responsibility to the people of his province.

     His accountability to the crown for the loyal support of British and royal interests was enforced by the liability to removal for serious violations of his trust. Some of the specific penalties attached to breach of particular instructions have already been noticed. Another method of enforcing responsibility lay in the requirement of bonds for the due observance of instructions. Such security was first demanded by the crown from the proprietary governments. In Pennsylvania it was exacted from the governor by the proprietor himself.¹

     In addition to these checks, which may perhaps be called administrative, the governor had also a certain legal accountability in the courts, though he was answerable only at the King’s Bench, and not in any court within his province. This principle was clearly stated by Chief Justice Mansfield in his decision in the case of Fabrigas vs. Mostyn, which came before him in 1773.² Indeed, as early as 1700 the jurisdiction of the King’s Bench in case of criminal misconduct on the part of

colonial governors was defined by act of Parliament.¹ Suits for damages might be brought against the governor in the same court.² Instances of the actual prosecution of governors in this way are, however, hard to find. Douglass in his “Summary” mentions only two cases of actual trial before the court of King’s Bench, those of Douglass, governor of the Leeward Islands in 1716, and Lowther of Barbadoes in 1720. The only instances found in the old thirteen colonies are those of Lord Bellomont, governor of New York at the close of the seventeenth century, against whom suit for false imprisonment was brought, and Sir William Phips, who was sued for illegal interference with a collector of customs.³

     According to two important witnesses, these legal checks were nevertheless very far from giving perfect security against misconduct. One testimony, from an official or semi-official source, certainly not from the standpoint of a colonist, is a report presented through Secretary Stanhope to the Board of Trade in 1715. This writer declares that “on Complaints of grievances, and of many great oppressions, which have not been done in a Judicial way, and where the proceedings were not of record, and consequently could not be proved so fully before the King, as in the aforesaid case of Appeals, the persons injured meet with unsupportable difficulties and have seldom bin relieved on their complaints.”⁴ The other witness is Hamilton, who, in his famous speech delivered in defence of Zenger in the year 1735, based his argument for freedom of speech largely upon the fact that other means of holding the provincial governor to his accountability were ineffective. “We are indeed told,” said he, “and it is true they are obliged to answer a suit in the king’s courts at Westminster, for a wrong done to any person here: But do we

not know how impracticable this is to most men among us, to leave their families, (who depend upon their labour and care for their livelihood) and carry evidences to Britain, and at a great, nay, a far greater expence than almost any of us are able to bear, only to prosecute a governor for an injury done here? But when the oppression is general, there is no remedy even that way.”¹

     Since the restraints imposed upon the governor by the home government are seen to have been practically inadequate, more effective checks must be sought within the province. It is true that one branch of the provincial government, the judiciary, was largely ineffective for this purpose, since it was too much under the control either of the crown or of the governor, and was therefore not sufficiently representative of public opinion. This public opinion of the province was after all the strongest restraining influence upon the governor; to it, indeed, even the royal administrative control owed a large share of such efficiency as there was in the system. Of course the great organ of public opinion was the provincial assembly; and yet, underlying the need of an organic embodiment of public opinion, there is a need yet more necessary and fundamental,—the necessity of a free and open interchange of ideas on political subjects, of freedom to criticise the acts of any public officer, even the highest. In times like those of the colonial era, when redress from the home government could be had only with difficulty, when judges were subservient, when even assemblies might be corrupted, this was the last resort, the only ground of hope for a sound political life.

     In the early years of the colonial era the right of free speech was not always well guarded. There was frequent legislation, for example, against “seditious utterances,” a term which might mean almost anything. In 1639 the Maryland assembly passed an act for “determining enormous offences,” among which were included “scandalous or contemptuous words or writings to the dishonour of the lord proprietarie or his lieutenant generall for the time being, or of any of the council.”²

By a North Carolina act of 1715 seditious utterance against the government was made a criminal offence, and in 1724 Joseph Castleton, for malicious language against Governor Burrington and for other contemptuous remarks, was sentenced by the General Court to stand in the pillory for two hours and on his knees to beg the governor’s pardon.¹ A New Jersey act of 1675 required that persons found guilty of resisting the authority of the governor or councillors “either in Words or Actions . . . or by speaking contemptiously, reproachfully, or maliciously, of any of them,” should be liable to fine, banishment, or corporal punishment at the discretion of the court.² In Massachusetts even during the eighteenth century the right of free political discussion was denied by the House of Representatives as well as by the royal governor, though often unsuccessfully.³

     The history of the liberty of speech and of the press in the colonies does not lack its causes célèbres. One of the most striking is that of Nicholas Bayard in 1702. Under a statute declaring that persons endeavoring “by force of arms, or other ways, to disturb the peace, good, and quiet of this their majesties’ government, as it is now established,” should be deemed rebels, Bayard, on a warrant of the governor and council, was committed on a charge of high treason. The grand jury, which was said to have been packed, brought in an indictment charging the prisoner with circulating, particularly among the soldiers, libels declaring the existing government oppressive, and thus inciting the king’s subjects “to disown the present authority.” These alleged libels were embodied in an address to Lord Cornbury, the newly-appointed governor, who had not yet arrived in the province,—a course of action on Bayard’s part which was held to be in contempt of the governor then in office,—in a second address to the king and in a third to the House of Commons.

     The trial took place before commissioners who were specially

appointed for the purpose by the governor, and who throughout the trial displayed a marked bias against the prisoner. It was claimed that the jury was packed. According to some of the most damaging charges preferred by the prosecuting witnesses, Bayard had asserted that “the hottest and ignorantest of the people were put into places of trust,” and that the assembly had given the governor money to induce his approval of certain bills. In the course of the trial one of the commissioners even made the astonishing statement that it might be a crime “to petition the House of Commons in the plantations, where the king governs by prerogative.” On such charges Bayard was found guilty, and was sentenced to be hung, drawn, and quartered. This extreme sentence was not carried out, however; with difficulty he obtained a reprieve, and on Cornbury’s arrival the attainder was reversed by an act of assembly, which was confirmed by Queen Anne.¹

     Another method of restraining the liberty of public speech has already been noticed in the unsuccessful attempt to give to the governors a censorship of the press.² Apart from these extreme methods, an attempt was also made to curb the expression of political opinions by the application of the law of libel. The classic illustration of this class of efforts is the case of John Peter Zenger, who was tried for publishing a libel against Governor Cosby of New York.³ Lewis Morris, chief justice of the Supreme Court, had rendered a decision unfavorable to the governor in a suit involving the latter’s salary. Cosby thereupon removed Morris and appointed a new chief justice, De Lancey, who, as associate justice, had dissented from the opinion rendered by Morris. Morris then wrote several papers criticising the governor’s course, which were published in Zenger’s “Journal.” These the governor straightway denounced as false and scandalous libels; whereupon Chief Justice De Lancey charged the grand jury, dwelling upon the

peculiar danger of libels on the governor, arguing that they endangered the peace and created a distrust of government; but the jury failed to respond to his appeal. The council then sent a message to the House of Representatives urging that body to take action; but the House laid the message on the table. The council then ordered that the papers should be burned; Zenger was arrested on an order of the governor and council; and an unsuccessful effort was made to pack the jury. Andrew Hamilton of Pennsylvania, the leading colonial lawyer of the time, undertook the defence without any retainer.

     The issues were drawn very distinctly. The prosecuting attorney argued that government was a sacred thing; that if persons high in office were exposed to censure by private individuals, government could not maintain itself. Hamilton, on the other hand, rested his argument for the defence largely on the principle that falsity is necessary to constitute a libel. The court refused to admit the question of truth; whereupon Hamilton made his appeal to the jury with a strong argument for free criticism as the only safeguard against abuses in government. This appeal won the day, and the prisoner was discharged.¹ The outcome of this case had a marked influence in other colonies. It is true that in 1768 Chief Justice Hutchinson, in his charge to the grand jury, urged action on certain articles reflecting upon the governor’s conduct which were published in the “Boston Gazette”; but the grand jury ignored the suggestion.²

     It is no exaggeration to say that without at least partial freedom of speech and of the press the restraining influence of the representative system upon the governor would have been impossible. In the face of open public criticism, the governor could no longer secure the election of representatives who would carry out his policies without question. Subservient representatives knew that they would have to face the

wrath of their constituents, whereas opposition to the governor might be one of the shortest roads to popularity. Furthermore, the free expression of public opinion in the press and in the assembly had an important result in strengthening the efficiency of the English system of control. The public sentiment of the colony was thus enabled to make itself felt not only by the governor but also by those authorities to which alone the governor was strictly and legally accountable. Indeed, the assemblies, through their regularly appointed agents, came to have a very considerable influence in London, and were sometimes even strong enough to secure the recall of obnoxious governors.¹ The name of Benjamin Franklin will at once suggest itself as that of the most successful, or at least the most eminent, of these representatives of colonial opinion.

     This study of the provincial governor may be properly closed by a brief survey of the main conclusions which have been reached.

     The royal or provincial government was not a system which came full-armed into existence at the beginning of our colonial history, but it had been preceded by other systems, among which it had gained a place which gradually became the dominant one. Direct control by the crown, for example, had been preceded by various arrangements under which government was left in the hands of private persons or of corporations. Again, the ultimate form of the executive in the royal provinces, that of a governor checked by an executive council, had been preceded by experiments, now with a collegiate executive, or again with a single head unchecked by any council. The powers of the governor had also gradually undergone important limitations, as is shown by comparing the elaborate instructions of later days with the brief, indefinite grants of power which had gone before them. In a word, the old confusion of functions had been forced to give way to a partial separation of powers. In the provincial governments, then,—a term including proprietary as well as royal governments,—

the executive finally took the form of a governor appointed either by the crown or by the proprietor as the case might be, checked and assisted by an executive council appointed commonly on the governor’s recommendation.

     The governor’s powers and duties were defined by a great variety of instruments, of which the most important were the commission and instructions, issued either by the crown or by the proprietor. These instruments were modified to an important extent by the local usages of the different provinces. The main outlines of the governor’s office were determined by his vice-regal character: as the representative of the king, he succeeded with certain inevitable limitations to the powers of the royal prerogative. He was in the first place invested with certain powers which may be regarded as essentially executive, such as the command of the military, the determination of questions of war and peace within narrow limits, the representation of the colony in its external relations, the appointing power, a certain limited control of provincial finance, and finally the power of pardon.

     The governor also stood in close and important relations with the other departments of the provincial system, the judiciary and the legislature. Over the former branch he exercised a strong influence through his right of appointing judges and through a limited control of the provincial courts; furthermore, with the council he was in most of the colonies himself a part of the judicial system, whose independence and consequent value as a check upon the executive were seriously impaired. Over the assembly, too, the governor had very considerable influence. He had generally its very existence in his hands; in most provinces he might determine its sessions at will; its upper house was a body of men chosen for the most part on his recommendation, and he had also in his power of distributing patronage a very important instrument for undermining the independence of the representative house; finally, he was himself, through his power of approving or vetoing the acts of the assembly, a part of the legislature of the province.

     On the other hand, the assembly through its mere existence as a critical body was the organized expression of the public

opinion of the province, and through its power over the purse was able to control the governor’s action to an extent which more than counteracted the measure of power which he possessed over the assembly. In this control of the financial situation the assembly had a formidable weapon, which it used not merely as an instrument of security against abuse of executive power, but also as a means of extorting from the governor important powers properly belonging to the executive. The result was that in some of the colonies a very large share of the executive power fell into the hands of the assembly or of their appointees.

     But the governor was more than the head of a local system he was also the agent of the crown, bound to maintain its interests; he was the regular medium of communication between the colonies and the home government, and the executor of acts of Parliament relating to the colonies. Naturally this double nature of the office was often the source of serious embarrassment when royal or British interests came into conflict, or apparent conflict, with the interests of the province.

     The governor had also a double responsibility, owing a legal and official accountability to the home government, and a moral and practical one to the people of the province and their representative, the assembly. The first obligation was imperfectly enforced by judicial and administrative processes; the second was more effectively secured by the hold of the assembly on the public purse.

     Throughout this study the conflict of opposing principles has been apparent. In the first place, there was the inevitable conflict between legislative and executive departments, marked by the almost universal tendency of the legislature first to check and finally to usurp executive powers. This issue was complicated by the conflicts between two other pairs of opposing principles. The governor, as the representative of the monarchical idea, stood over against the assembly, which represented the people. Finally the governor, as the agent of the crown and therefore the representative of imperial or perhaps more accurately British interests, came in conflict with the assembly which embodied the local forces, the local interests

of the province, and sometimes at least broader colonial or American interests. In all of these contests the governor stood for a losing cause.

     Rightly then to understand the deeper forces which produced the war of independence, one must understand the gradual growth of that sense of divergent interests without which all the political agitation of Samuel Adams, the eloquence of Patrick Henry, and even a few injudicious measures of British statesmen from 1760 to 1774, could hardly have led to revolution. Nowhere can this gradually awakening consciousness of divergence, so far as it reveals itself prior to what is commonly called the revolutionary era, be better studied than in the conflicts between the provincial governor and the provincial assembly. It is the significance of these issues which has given to this study its chief importance. The questions involved are not of merely antiquarian or temporary or local interest: they are vital, permanent, and fundamental.