As the colonial executive only gradually came under royal control, so its ultimate form, that of a single head checked by a nominated council, was also at first undetermined. In the first century of colonization there were numerous experiments.

     For the study of the executive, Virginia, as the oldest of the royal governments, again furnishes a convenient starting point. Under the first charter the resident government was vested in a council appointed by the superior council in England.¹ This council was to choose its own president, to whom certain minor functions were to be intrusted exclusively; and yet the right of the council to appoint and remove him at pleasure made that body the real executive, and justifies the classification of this early Virginia executive as of the collegiate type. This government proved unwieldy and ineffective; in 1609, therefore, the company received its new charter, which left it free to choose its own methods in the government of the colony.² As it was evident that a strong hand was needed, the principle of having a single head was adopted, and Lord Delaware was made governor, with absolute discretion in the choice of such councillors as he saw fit to employ.³ This policy, demanded perhaps by the exigencies of the time, worked ill as a permanent system, inasmuch as the governors were nearly always arbitrary in their methods, and often mercenary and unscrupulous. Moreover, the fact that as yet the colony had no popular assembly was a source of especial

danger; and there was therefore general rejoicing when the governor was at last “restrained to a Counseil ioyned with him.”¹ The Ordinance of 1621, which was probably hardly more than a formal statement of the constitution actually introduced two years before, established two councils, the one legislative, the other executive. The governor, however, seems to have been little more than the first member of the council.²

     It is hard to say what changes took place in the constitution of the executive on the introduction of the royal government, if indeed there were any real changes. The royal commissions of 1624 and 1625 were commissions to the governor and council, without any definite statement as to their mutual relations.³ It is clear, however, that there was a period of conflict between two ideas. The governor contended for the theory of a single head, advised and to a certain extent checked by the council, yet possessing in himself the real executive authority; whereas the council claimed for itself a larger share of the executive power.⁴ In 1631 the governor and council came into direct conflict. Governor Harvey complained that he could do nothing but what the council advised, and that his power extended no farther than to a casting vote;⁵ while from the council, on the other hand, there were complaints of the overbearing conduct and usurpation of Harvey.⁶

     Constitutional development in Virginia was interrupted by

the civil war; but by 1689 the governor was clearly separated from the council and possessed considerable power over it. Not only had he the right to make provisional appointments to fill vacancies in the council, but he might suspend members for causes which, by a later provision, were to be communicated to the home government. Moreover, when councillors were regularly appointed by the royal order, it was usually on the nomination of the governor.¹ The exact relation between the governor and the council continued to be matter of controversy; but there was now a rough definition of their relative positions, showing a single head, the governor, invested with the central executive power, but checked in its exercise by a nominated council more or less under his influence.² The system thus worked out in Virginia seems to have been the model for other royal provinces, and even to have influenced the proprietary governments to some extent.

The proprietary government in Maryland, established soon after the introduction of royal government in Virginia, adopted as the form of executive in the colony a governor with an advisory council, both appointed by the proprietor. The council in Maryland was at first very small: only three members were named in Calvert’s commission of 1637.³ It is not clear whether the taking of advice was at first compulsory upon the governor;¢ but the commissions of 1644 and 1666 expressly stated that the advice of the council should be taken, at least in important matters.⁵ Though the councillors were regularly appointed by the proprietor, the governor was sometimes authorized to make additional appointments.⁶

     In 1665 the Carolina proprietors issued a document called the “Concessions,” by the provisions of which the executive consisted of a governor and a council of from six to twelve persons named by the governor.¹ The executive power was vested in the governor and council, but the governor, through his right of naming the councillors, held a position of practical independence. This system was soon superseded by the elaborate instrument known as the “Fundamental Constitutions,” which provided for an organization of the proprietors themselves, called the “Palatine’s Court,” the president of which was the palatine chosen by the proprietors from their own number.² This was to be the chief executive body of the colony, though certain larger questions were to be settled by the Grand Council, consisting of the proprietors themselves and forty-two councillors chosen by a complicated process of election in which there was a strong aristocratic element.³ It is clear that the collegiate idea of the executive was thus carried to an extreme point. The palatine who stood at the apex of the system was only a primus inter pares, and even the Palatine’s Court did not possess full executive powers, since many of these were reserved to the Grand Council. Inasmuch as this system never became the actual constitution of the colony, it is idle to conjecture how it would have worked, though it may be noted that some of the formal provisions of the “Fundamental Constitutions” were observed for a considerable time.

     In the absence of the palatine and his associate proprietors, the executive power in the province was vested in the governor, who was the proxy or deputy of the palatine, and the councillors, each of whom was the representative of some one of

the proprietors.’ For a time, it is true, the assembly was permitted to elect a certain number of commoners to the council; but the proprietors found this practice unsatisfactory, and by 1691 it was abandoned.² The governor and the deputies, like the Palatine’s Court which they represented, constituted in theory a collective executive;³ though the independent position of the councillors was modified somewhat by the practice of giving the governor blank deputations, which he might fill out at his discretion. Appointment by the individual proprietors continued, however, to be the rule.⁴

     Finally a change of some importance was made in the form of the council, a change in form which implied also a change in theory. Instead of instituting a body consisting of the personal representatives of eight proprietors, the North Carolina instructions of 1718 organized a council of ten members besides the governor, “as the custom is in his Majesty’s other colonies.” s In South Carolina, similar action was taken in 1719. In the latter colony the people were inclined to emphasize the principle involved in the change, and refused to recognize the new constitution as valid. The discussion was closed by the rebellion of the same year, and the consequent establishment of royal government in South Carolina.⁶

     In North Carolina there was a controversy, similar to that in Virginia in Harvey’s time, arising from the desire of the governor to acquire greater independence of the council. Governor Everard in 1729 claimed an independent right of nominating and removing public officers. Here, as in South

Carolina, however, the controversy was closed by the establishment of a royal government in the colony.¹

     Of the Carolina proprietors, two, Berkeley and Carteret, were also proprietors of New Jersey. The “Concessions” of New Jersey, like those of Carolina, vested executive powers in the governor and council jointly, but, on the other hand, authorized the governor to appoint the councillors, though the proprietors maintained a reserved right to appoint directly if they saw fit.² By later instructions it was provided that vacancies in the office of either governor or councillor should be filled by vote of the governor and council.³ In 1683 the new proprietors of East Jersey proposed a system styled the “Fundamental Constitutions,” which is of some interest as showing the political theories of the time.⁴ By this instrument a large executive council was provided for, consisting of twenty-four proprietors and twelve freemen, and this large body was again subdivided into a number of committees. It is not surprising, however, that such a cumbersome system was never organized except on paper. In the meantime, the old form, by which the power was vested in the governor and council, was maintained, although the governor’s power was very considerably checked by the council. Appointments were determined apparently by the governor and council jointly; commissions were issued by order of the council.⁵

     The first government of New York was extremely simple. Complete political authority was vested in one man, Governor Nicolls, to whom the Duke of York granted all the powers conferred upon the proprietor by the charter of 1664. This despotic system was soon modified by the addition of a council, which was, however, to be appointed by the governor.⁶

Governor Dongan’s instructions of 1683 named some of the members of his council, but empowered him to suspend councillors and to fill the vacancies.¹ Finally, in 1688, the royal commission to Andros established the usual rule of the royal governments.²

     The first royal commission for the government of New Hampshire provided for a collegiate executive, vesting executive powers in the president and council jointly.³ Three years later, however, a commission was issued providing for a royal government in the usual form.⁴

     In Pennsylvania the charter given to William Penn in 1681 was followed by a series of constitutional experiments. Passing over Penn’s first commission to his deputy, Markham, which was purely provisional,⁵ the “Frame of Government of 1682” was the first constitution of Pennsylvania. By this document the executive power was vested in a large body called the “Provincial Council,” in which the governor was to preside and to have a “treble voice.” He was also to have a limited power of appointment on the nomination of the council, but was to perform no public act of importance without the advice and consent of the council. This Provincial Council was composed of seventy-two members, of whom one third were annually elected by the freemen for terms of three years. The business of the council was divided among committees. Later, the number of councillors, having been found too large, was reduced successively to eighteen and twelve.⁶ On Penn’s departure from the colony in 1684, the government was left in the hands of this Provincial Council, which was to act in the name of the proprietor.⁷ In 1687 Penn issued a commission to five

councillors, authorizing them collectively to exercise the functions of a deputy-governor.¹ In the next year the governor’s office was placed in the hands of one man;² but two years later there was a recurrence to the collegiate form, in a commission conferring the powers of the deputy-governor upon the council.³ After the brief period of royal control, Penn adopted a form similar to that in the royal governments, by which a governor was appointed by the proprietor to act in conjunction with councillors, whose assent was required in all cases.⁴ In 1701 the constitution of the colony was put into its permanent form, under which the governor was to be the chief executive, although checked by councillors who were to “assist” him “with the best of their advice.” These councillors were appointed by the proprietor in the first instance, but they were afterward to be named by the governor.⁵

     After this rapid survey of the different colonies, the results of the first century of constitutional experience may be briefly summed up. To represent the colonial executive as having assumed its final form at this time would be to give a false impression of the actual situation, inasmuch as questions were still open which gave rise to frequent controversies between governor and council. The general result, however, is clear. There was in each of the colonies, excluding the elective governments, a single head, the governor, appointed either by the crown or by the proprietor. This governor was checked by a council appointed generally by the superior authority in England, though usually on the recommendation of the governor, — a fact of considerable importance in determining the mutual relations of governor and council. To this general rule in regard to the appointment of councillors there were, however, two leading exceptions. In Pennsylvania they seem to have

been nominated by the governor and presented by him to the council for acceptance.¹ In Massachusetts they were elected by the General Court, consisting of the council and the House of Representatives, and the choice was then subject to the veto of the governor.² The chief question still left open in all the colonies was, then, as to the exact extent to which the council should be allowed to control the action of the governor.

     Still more important than these questions of organization was the gradual growth from loose and vague provisions toward a more accurate definition of the powers and duties of the executive. The nature of the early colonial governments was necessarily determined to a large extent by the conditions under which they were organized. The early governor was not the executive of a settled political community. In addition to his political functions, he was often the manager or the superintendent of an essentially commercial enterprise. Indeed, in the first stages of colonization, the most important of the governor’s duties was the superintendence of the general work of settlement, such as the granting of lands, the development of natural resources, and the maintenance of friendly relations with the savages. It is hardly strange, then, that the political aspects of his office should have been overshadowed, or at least strongly modified, by the peculiar situation in which he was placed. It was inevitable that his political functions should be loosely defined.

     This business aspect of the governor’s office, his position as the manager of a large commercial establishment, so to speak, is clearly brought out in the instructions and correspondence of the earliest colonial governors. The Virginia president and council of 1607, and the first governors who succeeded them, were clearly the overseers of an industrial establishment intended to furnish revenue for the government

at home. The governor of Maryland received instructions not only for the government of the colony, but for the management of the proprietor’s private stock-farm.¹ Furthermore, the turbulent elements in these early colonies made necessary the enforcement of almost military discipline;² and this aspect of the governor’s office was also emphasized by the necessity for constant watchfulness in order to guard the colony against its savage neighbors. It was only natural, then, that in this era more emphasis should be laid upon executive efficiency than upon constitutional limitations.

     The charters issued to the proprietors and to colonizing companies were usually couched in very general terms. The grantees were empowered to “punish, pardon, govern, and rule” the inhabitants of the colony, though frequently the provision was made that legislation and taxation should be with the consent of the freemen. This limitation was imposed in the charters of Maryland, Carolina, and Pennsylvania. The New York charter reserved the right to hear appeals carried from the provincial courts to the king in council, but contained no restriction as to legislation and taxation.³ The proprietors had thus left to them a wide discretion in the constitution of their colonial governments.

     The first governor’s commissions were correspondingly indefinite. The Virginia president and council of 1607 were invested with powers legislative and judicial as well as executive.⁴ The very brief commission to Lord Delaware in 1610

is worth citing. Delaware was commissioned governor and captain-general, with power to enforce martial law, “and upon all other cases as well Capitall as Criminall and upon all other accidents and occasions there happening, to rule, punish, pardone and governe,” according to instructions given by the council in England, or in default of such instructions by his own discretion, or by such laws as he should see fit to enact either independently or with the advice of such a council as he should think proper to summon; in short, he received powers as absolute as the company by its patent could give, with the understanding, moreover, that if these powers were not sufficient, it would endeavor to meet his wants.¹ Here, then, in sweeping terms is a grant of legislative, executive, and judicial functions. The commission to Nicolls as governor of New York was couched in similar terms, showing that the Duke of York invested his deputy with the right of exercising all authority granted to himself as proprietor.²

     These two commissions to Delaware and Nicolls respectively furnish the most striking instances of the brevity which was characteristic of all the early commissions.³ Those issued by the crown immediately after the overthrow of the Virginia Company usually contained a formal grant of authority, a statement of the governor’s military powers as commander-in-chief, a few lines regarding the constitution of the council, and some instructions of a special and temporary character. Finally, the governor was authorized to govern the colony as fully as any governor of the preceding five years had done. This vague reference to past usage as the measure of the governor’s powers occurs as late as 1641.⁴ Even in the Carolinas and the Jerseys, with their elaborate written constitutions, the commissions

were brief enough;¹ and the prematurely minute definitions of their fundamental documents had little or no practical constitutional value. It was only very gradually that the commissions and instructions were so enlarged that a more accurate definition of powers was made possible.

     The institution of royal governments, expressing as it did the nascent conception of the colonies as parts of a large political or, to anticipate contemporary phraseology, imperial system, contributed toward a more purely political conception of the governor’s office. In the establishment of these governments, the king was but asserting his right and duty to govern his subjects; and since the governor was the king’s representative, this vice-regal position gradually came to determine in large measure the powers of the colonial executive. The governor’s prerogative was, in theory, the royal prerogative on a smaller scale and of course with important limitations. Nor was the influence of these new conceptions limited to the royal provinces; it was felt to a marked extent in the proprietary colonies as well.

     The most noticeable feature of the earlier colonial constitutions is the absence of anything like the modern political principle of the separation of powers. In the Virginia government of 1607, and in Lord Delaware’s commission of 1610, there was, as we have seen, a union of executive, judicial, and legislative functions.³ In Maryland the right of legislation was vested in the proprietor and the freemen; but, in the intervals between the sessions of the assembly, the proprietor was specially empowered to issue ordinances having the force of

law, provided that such ordinances should not prejudice the rights of persons in life, members, or property. This prerogative was granted to the governor by the early commissions, with the proviso that his enactments were not to be in conflict with laws already in force. Moreover, judicial jurisdiction in all cases civil and criminal was given him, to be exercised either alone or with his council.¹

     The precedents set in the older colonies were followed elsewhere. In New York, Governor Nicolls was invested with all the powers of the proprietor, including the right of legislation, which was actually exercised by him either alone or with the assent of the council and of the assize of justices, a body of his own nominees whose power could have been hardly more than advisory.² The Carolina charter, like that of Maryland, though it provided for legislation regularly by the proprietors with the consent of the freemen, also reserved to the proprietors or their representatives the right to issue ordinances having the force of law;³ and the minutes of the governor and council show that such ordinances were actually passed.⁴ Here also the governor and council were given judicial functions.⁵ In New Hampshire the governor and council were authorized to continue the old taxes until suitable provision should be made by the assembly; s whereupon Governor Cranfield, on the failure of the assembly to raise the necessary revenue, tools advantage of this power and continued the taxes, meeting with serious resistance, however, in the attempt to collect them.⁷

The ordaining power was evidently pushed very far in these early years of New Hampshire’s separate provincial government, for there are complaints that the governor and council made laws without the coöperation of the assembly.¹ Here also the president and council were endowed by the first provincial commission with judicial jurisdiction in all cases civil and criminal.² Everywhere, then, the governor is found exercising functions which are usually considered to be beyond the sphere of the executive department of the State.

     The possession of legislative authority by the executive was hardly in accord with the old English tradition that legislation and taxation should be guarded by a representative body. It was not likely, therefore, that this branch of the governor’s extra-executive power would survive the primitive conditions of the first colonial establishments. In Virginia the triumph of the liberal element in the company gave to the colony the famous assembly of 1619, the first representative body in America.³ This grant was confirmed by the ordinance of 1621, and the governor’s authority was thus brought within more moderate limits.⁴ In spite of the existence of an assembly, however, the governors seem not to have given up their legislative powers at once; consequently in 1624 the assembly found it necessary to pass a formal act declaring expressly that the governor was not to make laws without the consent of the assembly.⁵

     After the institution of the royal government in Virginia, the policy of the crown was for a time uncertain. The early commissions said nothing of an assembly; and the only recorded legislation of the next five years which has come down to us is in the form of proclamations by the governor.⁶ On the other hand, it is certain that the assembly did not lapse altogether; for there is evidence that in 1627 the king recognized its

existence and competency by submitting to it certain propositions relating to the tobacco trade, to which the assembly replied by submitting counter-propositions.¹ The power of the assembly was, however, still on a precarious footing. The governor continued to assume for himself the rights of taxation and legislation, which were again expressly denied by the assembly in acts of February and September, 1632.² This abuse of power by the governor led to his expulsion by the colonists; and though he was again forced upon them for a time, yet a few years later the king, by his instructions to Berkeley, gave to the assembly a formal recognition.³ After the Restoration the same Governor Berkeley was by his first instructions directed to call the assembly within one month of his arrival in the colony.⁴

     The continued existence of some representative body was now fairly assured; but there was still at times a disposition to restrict its activity as far as possible. Lord Culpeper was directed to summon an assembly only by special direction of the crown,⁵ and five years passed without any legislative sessions.⁶ On the other hand, the instruction to Lord Howard of Effingham to “recommend” the assembly to allow the governor and council, in case of emergency, to impose duties, was a clear recognition of the assembly and of its exclusive right to determine taxation.⁷ The governor, nevertheless, seems still to have encroached upon the field of legislation

by means of proclamations;¹ but, with a representative assembly controlling the purse, these abnormal features naturally passed away or became very exceptional.

     In New York, James fought against the change as long as he could. In reply to Andros’s letter recommending an assembly, he wrote that assemblies were destructive to the peace of governments in which they were allowed.² In 1680 occurred the Dyer case, in which the officers of the duke were resisted in the collection of duties imposed by the latter.³ The Court of Assizes, composed of the governor’s own nominees, petitioned for a representative assembly; and James finally submitted, authorizing Governor Dongan in 1683 to call an assembly.⁴ This body at its first sessions enacted the so-called “Charter of Privileges,” which asserted in strong terms the exclusive legislative authority of the assembly;⁵ whereupon James took offence at the high tone assumed by it and disallowed the act.⁶ The royal commission of 1686 again vested full powers of legislation and taxation in the governor and council;⁷ and in 1688 New York was annexed to the general government of New England, in which the same despotic system was already in force.⁸ The result of this latter experiment is too familiar to need repetition here. In New York the Andros government went down before the Leisler rebellion; whereupon Leisler established a provisional government, assumed that the Charter of Privileges was in force, and called an assembly.⁹ This revolutionary organization was of course

overthrown, but the new royal commission definitely recognized the assembly.¹

     The Andros commission for the government of New England was the last deliberate attempt to give the governor absolute powers in legislation, though in Georgia there was certainly for a time a very informal government under Oglethorpe.² Until 1751 there was no representative assembly within the latter colony, and the one then instituted was nothing more than an advisory body.³ When Georgia became a royal government, however, an assembly was regularly organized.

     Reference has been made to the power of issuing ordinances as exercised in Maryland, the Carolinas, and New Hampshire. This power, though certainly actually used in the beginning, seems, however, to have been allowed to lapse.⁴ In New Hampshire, Governor Cranfield’s effort to collect the old taxes continued by proclamation met, as has been seen, with vigorous resistance; hence in the commissions given after the revolution of 1688 the clause providing for this mode of continuing taxes was wisely omitted. Nevertheless, the power to issue ordinances continued to be exercised, but usually within reasonable limits. In two specified cases, namely, in the erection of courts and the regulation of fees, the governor was invested by his commission with quasi-legislative power; and although these rights were practically very much limited by the action of the assembly, yet they continued throughout the colonial era to be in theory a part of the governor’s prerogative.⁵

     Even after the governor had been forced to give up the power of legislating independently, he still claimed for himself, in many cases, a distinctly preponderating influence in

the process of legislation. In Virginia the royal instructions of 1682 directed that all bills should be drafted by the gov ernor and council.¹ The Maryland proprietor claimed for himself or his governor the sole right of initiating legislation.² In Pennsylvania, Penn’s first two constitutions provided that all laws should be prepared by the governor and Provincial Council; and measures thus prepared were then to be presented to the assembly for its simple approval or rejection.³ A similar exclusive privilege was given to the Grand Council, the collegiate executive of the Carolina “Fundamental Constitutions.”⁴ These claims, however, were uniformly resisted. In Maryland, the proprietor, after an unsuccessful attempt to force legislation upon the assembly,⁵ empowered the governor to approve bills presented by that body.⁶ The Carolina governor and council had for a time, it is true, the initiative in legislation; but in 1682 this privilege was restricted by the provision that, if the council failed to propose a bill presented by a majority of the grand juries, the Parliament might assume the initiative.⁷ Later the assembly denied altogether the right of the council to initiate legislation, and a prolonged deadlock ensued.⁸ The instructions of 1691 did not distinctly

assert this right.¹ Royal instructions like those of the year 1682 in Virginia were quite exceptional, containing, as they did, a grant of power such as was found in none of the royal commissions of the eighteenth century.

     In the earliest period of colonization, the governor was sometimes a member of the assembly. In the Virginia assembly of 1619, governor, council, and assembly all sat together, and the governor seems to have made motions like an ordinary member.² The ordinance of 1621 declared the assembly to consist of the council of state (the governor being a member) and two burgesses from each “town, hundred, or other particular plantation.” All decisions required a majority vote, but the governor had, apparently in addition to his vote as an individual member, the right of veto.³ The first Maryland assembly was similarly constituted. The governor presided, and his power was further increased by two peculiar customs, one of which was the use of proxies. Thus, on one division, the governor and one councillor are recorded as having cast fourteen votes.⁴ There is no indication that these proxies were given for particular votes; they were apparently used at the discretion of the holder. A second peculiar privilege enjoyed by the Maryland governor was that of issuing to persons not members of the council or regularly elected as representatives special writs, giving them the right to sit and vote in the assembly.⁵ Such votes would under ordinary conditions easily be controlled by the governor. The Carolina “Fundamental Constitutions” provided that the governor, the deputies, the nobility, and the elected representatives should all sit together in parliament, except in certain cases when they should separate into four houses. The first New Hampshire constitution had given the executive power to a president and council; but in view of the fact that by an early

statute a casting vote in the proceedings of the general assembly was given to the president, it seems evident that the president, council, and assembly sat as one body.¹

     The first important step toward legislative independence of the governor and council gained by the representative element in the assembly was the separation of the two houses. Just when the division took place in Virginia, it is not easy to determine. It has been said that it occurred in Culpeper’s time;² but much earlier than this, in 1666, there is a distinct reference to the “house” of burgesses.³ In Maryland the separation of the two houses came very early. In 1642 the burgesses requested a separation, which was at first refused; but in 1650 an act was passed providing for a division into two houses.⁴ In New Hampshire and the Carolinas the single chamber system was soon discarded, and the governor and council were recognized as an upper houses This division into two houses was the general rule in all the colonies except Pennsylvania, where the council lost all its formal legislative powers and became, at least in name, simply an executive body.⁶

     After the division into two houses, the governor at first generally sat either as a member of the upper house or as its presiding officer.⁷ Hutchinson, in his “History of

Massachusetts,”¹ says that Lord Bellomont, who was governor of Massachusetts in 1699, considered himself the head of the council in its legislative as well as in its executive capacity. Hutchinson thought, however, that this claim was the result of the unsettled condition of the constitution, and that the governor had strictly no right to vote on bills. Sewall’s diary represents the governor as taking an active part in legislative business. An entry of the year 1715 refers to a certain tax-bill which had been read in the council and which Sewall desired to have postponed; but “the governor would have it voted then,” and the vote was taken.²

     In 1725 the question as to the governor’s right to vote in the legislative sessions of the council was referred to the crown law-officers, who decided against the governor’s claim;³ but it is probable that this settlement of the questions at issue was not final, for in 1729 Governor Cosby of New York insisted on his right to sit and vote with the council. His action, however, called out a protest, in consequence of which the Board of Trade directed him not to act as a member of the legislative council; and thereafter Cosby’s successors both in New York and in New Jersey allowed the council the privilege of sitting apart in its legislative capacity.⁴ In North Carolina

there was a similar conflict. Governor Burrington maintained that the council always sat in a double capacity, “the two capacities never being distinguished,” and declared that the governor’s right to be present at all debates was allowed everywhere. Here again the council finally gained its point, in that it sat apart in legislative sessions and had a separate presiding officer.¹

     In 1739 the South Carolina council declared its independence in the following vigorous terms: “The Governor or commander in chief being present during the debates of this House is of an unparliamentary nature, it is therefore resolved that we will enter into no debate during such his presence.”² Governor Glen protested against this exclusion from the council, and was finally allowed to attend the sessions without taking any part in the debates.³ In 1754, Georgia was organized as a royal province with a royal government of the strictest sort. The rule there was,—and this rule may be taken as an expression of the normal practice of the royal governments,—that when the council sat as an upper house, the lieutenant-governor, if a member, presided.⁴ The council was thus, in form at least, an independent legislative house, having a distinct presiding officer.

     This was the last step taken during the colonial era in the separation of legislative and executive functions. The governor retained a certain part in the process of legislation, first through his right of assent or veto, and secondly through his influence over the council, an influence which, though weakened by his withdrawal from the legislative sessions, was still strong over a body composed mainly of his own nominees.

     Another branch of extra-executive powers possessed by the early governors has already been noted, namely, his judicial authority. This was necessarily much limited by the organization of a regular system of courts; but the governor and

council continued in most of the colonies to be the highest court of appeal within the province.¹

     The provincial governor, then, never became a purely executive officer, inasmuch as he continued to be invested with legislative and judicial functions of the highest importance. Nevertheless, much had been accomplished in the direction of a rational distribution of functions, in that the real control of legislation had passed irrevocably into the hands of the assembly, and the administration of justice was largely in the hands of a regularly organized judiciary. The result of this work of definition and separation, imperfect as it was, was the royal governor of the eighteenth century. With a few modifications, which have been already noted, the proprietary governors may properly be included in the same category with the royal. Thus, as a general term including both the proprietary and the royal governors, the name “provincial governor” will serve as a convenient if not precisely accurate title. The character of this office in its actual operation will form the subject of the succeeding chapter.