THE governor was the head of the colonial executive; but in the exercise of his powers he was assisted, and to a certain extent checked, by an executive council, usually of twelve members. Except in two provinces, these councillors were appointed by the crown, usually on the governor’s recommendation. The original rule, as stated in the governor’s instructions, was that the governor should always keep before the Board of Trade a list of persons best qualified for appointment as councillors.¹ The number was originally six; but later a list of twelve eligible candidates was sometimes required.² This rule evidently was not always observed; hence, on the recommendation of the Board of Trade, it was finally so modified that the governor was simply required, as each vacancy occurred, to send in the names of three persons, from which the crown might make its choice.³ When the number of councillors fell below seven, the governor was allowed to make provisional appointments, which were valid until acted upon by the crown or until by other nominations the council had again seven members.⁴ It was claimed in Virginia that the

governor kept the number of councillors as low as possible, in order that he might enjoy this right of appointment.¹

     The governor, in his nominations for the council, was directed to see that certain qualifications were complied with. For example, the councillors must be men of good life and “well affected to Our Government,” of good estates, and not necessitous persons or much in debt; they must also be “inhabitants” of the province.² Clearly the intention was to secure, so far as possible, the substantial men of the colony, though undoubtedly many other elements had to be taken into consideration. Thus, in at least two colonies, it was not safe to ignore the principle of local representation within the province. The New Jersey proprietors, on their surrender of the two provinces of East Jersey and West Jersey, had expressed their wish that in the united province six councillors might be chosen from each side of the old line of division;³ and this principle was recognized in the first royal instructions.⁴ Still, it is evident that the rule was not strictly enforced, for in Belcher’s time only two of the councillors represented the western division, an inequality which was made a ground of complaint against the governor. In 1758 Governor Bernard was instructed, in case of vacancies, to send in the names of three persons in each of the two divisions.⁵ In New Hampshire there was no definite provision in regard to the matter; but in 1717 complaint was made to Governor Shute that by his appointment of six councillors, all from Portsmouth, an undue representation had been given to the merchants and traders.⁶ Similar considerations undoubtedly presented themselves in other provinces.

     It has generally been assumed, and with some degree of truth, that the governor had essentially his own way in the appointment of councillors; but such a statement would require some limitation. Undoubtedly he was not at first under any effective restraint; but later he seems not to have been always successful in getting his nominations accepted,—a circumstance indicating, the presence of counter-influences not always of a desirable kind. In 1756 Governor Sharpe of Maryland complained that his recommendations for the council had been very generally disregarded.¹

     The councillors thus appointed might be removed only by the crown, though the governor had the right to suspend them for certain causes.² A councillor absent for twelve months without the governor’s consent, or for two years without leave from the crown, was to lose his position.³ The governor was directed to send immediately to the Board of Trade the names of all councillors suspended by him, with a statement of the grounds of suspension; but this arrangement left him so nearly unrestrained that it was afterward found necessary to require that all suspensions should have the consent of a majority of the council, to which the governor was to communicate the reasons for his action. If, however, the reasons were of such a nature that they might not properly be communicated to the council, the governor was to transmit at once to the home government a full statement of his charges against the suspended councillors.⁴

     Under these provisions the governor had considerable latitude

in the exercise of his right of suspension; indeed, even in the final removal of councillors his influence often prevailed. There can therefore be little doubt that this power was liable to very serious abuse by governors who were disposed to take advantage of it to get rid of their opponents in the council, and to put into their places persons who might be relied upon to support the governor’s interest. This danger led to a tendency on the part of the home government to check more closely the governor’s power of suspension, with the result that in several cases suspended councillors were reinstated by special order of the crown. Thus in 1706 the Board of Trade ordered Lord Cornbury to reinstate Lewis Morris, a councillor whom the former had suspended;¹ and in 1719, on Governor Spotswood’s proposal to suspend William Byrd for prolonged absence from the colony, an order in council was issued directing in somewhat peremptory terms the councillor’s retention or reinstatement.² It is true that this reversal of the governor’s action was not common; but the fact that it was possible and had actually taken place was of no little significance.

     There were two colonies in which the constitution of the council differed from the regular type just described. These colonies were Pennsylvania and Massachusetts. When Penn left his colony in 1701, he issued a commission to ten persons to constitute a Council of State, empowering the governor for the future to fill any vacancies that might arise and, if he saw fit, to add to the number of councillors.³ This provision seemed to give the governor greater control of the constitution of the council than was the case in other colonies; but it is evident that his power was very much restricted either by subsequent instructions or simply by usage, for in actual practice the council itself had an important part in the admission of new members.⁴ The exact method of the removal of councillors

is not quite clear; but it would seem that the power of dismissal lay in the hands of the governor and council, possibly in those of the governor alone.¹ Thus in Pennsylvania, as in the royal governments, there was a nominated council, in the appointment of which the governor had a predominant influence.

     In the Massachusetts council is found a radical departure from the principle of the royal government, in that the council was there not appointed, but elected. The explanation of this circumstance lies in the peculiar character of the second Massachusetts charter. In granting this instrument, the crown had determined not to restore the old independent system which had grown up under the first charter, but to put in its place the principle of direct control by the crown. The old republican traditions, however, were too deeply rooted in the affections of the people to be lightly put aside, and consequently concessions were necessary. Indeed, the charter of 1691 was distinctly a compromise, under which the governor was here, as elsewhere, to be appointed by the crown, though the old principle of popular control of the executive was to survive in the constitution of the council.

     The charter declared that there should be a council of twenty-eight members, more than double the usual number in the other colonies. Of these twenty-eight members, eighteen at least were to be from the old Massachusetts Bay jurisdiction, four from Plymouth, three from Maine, and one from the ter ritory between the Sagadahoc and Nova Scotia. As each of these divisions must have at least the representation here assigned, only two members were left without designation. This council was to be chosen annually by the General Court; but the charter provided that the General Court should consist of the council and the House of Representatives, and further, that the governor should have the right of veto upon all acts and orders of the General Court.²

     The first councillors were named by the crown; consequently an election did not occur till 1692. On that occasion the House of Representatives claimed the right to elect councillors; but the council also claimed the right to participate in the election, and finally carried the day.¹ The members of the council were regularly elected by joint ballot of the two Houses;² and though in this ballot the lower house had of course a decided numerical advantage, yet as a rule the influence of the council was sufficient to prevent sweeping changes.

     That the governor’s right of veto was no mere formality is shown by the circumstance that in 1693 Governor Phips negatived a candidate who had opposed his appointment as governor.³ Again, in 1703 Governor Dudley placed his veto upon five councillors, two of whom were the next year again elected by the General Court but again disallowed by the governor.⁴ The most striking case is that of Governor Belcher, who in 1741, at the time of the famous land-bank craze, negatived thirteen councillors; whereupon the House retaliated by refusing to fill the vacancies, thereby establishing a precedent which was followed by succeeding Houses.⁵ Nevertheless conflicts of this sort were less common than might have been expected, inasmuch as both the House and the governor seem usually to have avoided radical action. In 1729, in the heat of the struggle over the salary question, only four of the twentyeight councillors were changed, notwithstanding the fact that the council had opposed the extreme demands of the House.⁶

     The Massachusetts council, then, departed from the ordinary type in two important particulars. In the first place, it had a much larger number of members,—always an important consideration in determining the character of such a body; and, secondly, it was constituted on an entirely different principle, in that it received its members not by appointment but by

election, an election checked, however, by the governor’s veto.

     Before this subject is left, it should be stated that besides the regular members of the council there were other so-called extraordinary members. Thus, by order of the crown, surveyor-generals of customs were ex officio members of the councils in their respective districts;¹ and by a later provision the same privilege was given to the royal superintendent of Indian affairs.² As might be expected, these extraordinary councillors seem to have been regarded with some jealousy by the regular members.³ Sometimes also the lieutenant-governor was a member of the council.⁴ In Massachusetts, Stoughton, the first lieutenant-governor, acted in the first place as a councillor ex officio, but in 1693 he was elected as one of the regular twenty-eight councillors.⁵ Thereafter, until 1732, the lieutenant-governors sat in council, but did not vote unless they had been regularly elected. In that year Governor Belcher, influenced, it is said, by personal dislike of Lieutenant-Governor Phips, forbade the latter to sit unless elected. In regard to this action, Hutchinson insists that in the intention of those who drew up the charter the lieutenant-governor was to have a seat in the council, and cites in support of his position a minute of the Board of Trade to that effect, made just before the charter passed the seals.⁶

     The councillors were not, as a rule, salaried officers, though in Virginia they received an allowance out of the permanent fund for the support of the government.⁷ In general, however,

like the members of the lower house, they had to content themselves with per diem allowances during the sessions of the assembly.¹

     As an executive board, the council was of course subject to the governor’s call,² though in some cases it met at stated periods. Thus in the New Jersey records are found references to regular quarterly meetings; and in Pennsylvania there was a rule providing for weekly meetings.³ For the conduct of executive business the commission required a quorum of three;⁴ but by the instructions the governor was directed not to act with less than five, except in emergencies in which so large a number could not be had.⁵ In the larger Massachusetts council of twenty-eight members, the quorum was fixed at seven.⁶ In executive meetings the governor presided and proposed matters for consideration; but he was directed to allow the council freedom of debate and vote.⁷

     Having considered the organization of the council, let us now turn our attention to its functions. These were of three general classes. In the first place, the council with the governor had some judicial functions, and constituted a court for the trial of certain kinds of offences. In the second place, it was the upper house of the provincial legislature. Finally, it was an executive body to assist, to advise, and in a measure to control the governor in the exercise of his executive functions. The judicial functions of the council will be considered incidentally in connection with the judicial powers of the governor, and its legislative work in connection with the relation of the governor to the assembly. For the present, then, the council may be considered as an executive, advisory body. An accurate definition of its powers and duties as an executive board is not easy. In the absence of definite statements, many matters were determined by mere usage; and even when definite statements did exist, they were often modified by the same unwritten law. The personal element must therefore be taken into account, in order to get an adequate conception of the relative powers of governor and council in any given province and at any given time.

     One function of the council is however very clear: it was at least an advisory body.¹ This phase of the councillor’s position was expressed in his oath of office, by which he was bound “at all times freely” to give his advice to the governor

“for the good management of the publick affairs of this government.”¹ The councillors had also to restrain as well as to assist the governor in the exercise of his powers. In the commission and instructions to the governor was a long list of matters in which his power was limited by the proviso that he was to act only with the advice and consent of the council. Thus, the commission and instructions to Governor Bernard of New Jersey in 1758 contained a number of such restrictions as the following: the advice and consent of the council were required in calling assemblies;² in erecting courts and regulating their jurisdiction;³ in issuing warrants for the expenditure of public money;⁴ in declaring martial law;⁵ and, finally, in taking any action not definitely provided for in the commission.⁶

     In appointments made by the governor the advice and consent of the council were not at first distinctly required.⁷ The respective rights of the governor and council within this field became in consequence the subject of frequent controversy. In 1709, however, in the instructions to Governor Hunter of New York, occurred the provision that commissions to judges and justices of the peace should be issued with the advice and consent of the council;⁸ and this restriction was repeated in subsequent instructions. The rule was still more forcibly laid down afterwards, when the governor was directed not to appoint judges or justices without the consent of at least three of the council. The Board of Trade explained the necessity for this new statement on the ground that the old provision, though clearly requiring the advice and consent of the council, had not been strictly adhered to by the governors.⁹ In Massachusetts

the consent of the council to appointments had been definitely required by the charter of 1691.¹ Indeed, the council had even gone so far as to claim the right of nominating officers, a power which was only with some difficulty resumed by the governor.²

     The advice of the council was of course asked and given on a great variety of other questions, though the extent to which the practice was carried naturally depended upon the personal characteristics of the governor on the one side, and of the councillors on the other. Some governors excluded the council from the conduct of public affairs as far as possible, while others were inclined to throw responsibility upon it.³ The temptation to shift responsibility was particularly strong in questions of legislation. Indeed, governors often asked advice as to whether they might properly give their consent to particular bills, even though before coming to the governor at all a bill must have been previously passed by the council sitting as an upper house. Governor Shute of Massachusetts, for example, asked the opinion of his council whether he might, consistently with his instructions, pass an act laying duties on English goods. The council gave its opinion that he might not.⁴ Again, Governor Sharpe of Maryland asked advice on the question of approving a supply bill, which among other provisions imposed a tax on the proprietary estates.⁵

     There is at least one instance, however, in which the council gave advice with some reluctance. The Massachusetts councillors, having passed a bill, were then called upon by the governor to decide whether he might sign it consistently with his instructions. They insisted, however, that having already declared their concurrence as an upper house they could

not give any further advice. Nevertheless, they continued to assert that the bill was for the public welfare; and the governor seems to have accepted this declaration as a convenient excuse, for he signed the bill, urging in defence of his action the advice of his council.¹

     In Pennsylvania the question of asking advice in legislation became an issue of great importance. It will be remembered that in this colony the council was a purely executive body, without any direct participation in legislation, although by the terms of their commission the councillors were to advise the governor in all public matters relating to the government and to the peace and welfare of the people.² This provision would seem to include the giving of advice on legislation; but the assembly was inclined to resent any interference whatever in this field. In 1709, Governor Gookin complained that the assembly would not allow him to communicate the supply bill to the council for its advice; and he therefore thought it necessary to enter into an argument in defence of his position.³

     During the governorship of his successor the issue was quite clearly defined. Governor Keith had been instructed that, in order to impose a necessary check upon the otherwise uncontrolled action of the governor and assembly, he was to take no action in legislative matters without the advice and consent of the council.⁴ The council, it must be remembered, was looked upon as the bulwark of proprietary interests, a view which only increased the hostility of the assembly. Keith now adopted a distinctly popular policy, by allying himself with the assembly as against the proprietary interest and its representative, the council. The result was that the proprietary instructions were so often ignored that the widow Penn at length found it necessary to intervene. Keith was censured for departing from his instructions, and new instructions were issued that completely tied his hands in matters of

legislation. He was directed for the future to advise with the council upon every meeting or adjournment of the assembly; to make no speech and send no message not approved by the council, if practicable; to return no bills without advice, and to approve none without the consent of a majority of the council.¹ Keith argued that by the existing charter the council was no part of the legislature and had no right to restrain the governor’s action in that department. He even went so far as to maintain that the council was not legally anything more than a council of state, “to advise, and to be present, as solemn witnesses to the Governor’s actions.”² He soon paid the penalty of his insubordination, however, with the loss of his office.³

     It is clear that the instructions of the widow Penn were not always strictly observed. Nevertheless, the council was so frequently asked to give advice that it seems often to have assumed almost the character of an upper house. For example, it discussed and amended bills for various purposes,⁴ although sometimes the governor passed a bill in the face of opposition from the council. Thus, in 1759, the assembly passed a bill for the issue of paper money, whereupon the council made a formal protest against the governor’s action as inconsistent with his instructions. The protest, however, was ignored and the bill passed.⁵

     The questions referred to the council were not confined to matters of legislation. There is an interesting case in Massachusetts in which the councillors were called upon to give their opinion as to the interpretation of the clauses in the charter which defined the governor’s military power. They were reluctant to give advice under such circumstances, and one of them declared that such questions of interpretation belonged to the judges, not to the council. They finally returned a noncommittal answer.⁶

     It has been seen that the reference to the council of such a question as the propriety of signing particular bills seemed often to offer a convenient means of shifting responsibility. The home government saw this danger, and laid down emphatically the principle of the governor’s personal responsibility. In the year 1758, for example, Governor Fauquier of Virginia approved the law reducing the salaries of ministers; but the act was disallowed on the ground that it had been passed contrary to the governor’s instructions, and Fauquier was reprimanded. In defence of his action, he presented the excuse that he had passed the law by the advice of his council and contrary to his own better judgment; but the Board of Trade declined to admit this defence, insisting that the advice of the council could not free the governor from personal accountability.¹

     More important than any formal statement of rights and duties, is the question as to the real influence of the council in the government of the province,—as to the extent to which it actually controlled the governor’s action. This is clearly a difficult question, depending as it does largely upon those personal elements that refuse to submit to convenient generalization or exact definition. It has been very generally assumed, and not unnaturally, that a body constituted like the provincial council was necessarily subservient to the governor, exercising practically little or no check upon his action; and it would not be difficult to find contemporary opinions tending to confirm this view. Governor Hutchinson, in his “History of Massachusetts,”² comparing the elective council of his province with the nominated council of the other royal governments, speaks of the latter as so closely dependent upon the governor that it could hardly be considered as a distinct branch. The same ground is taken by Dummer, in his “Defence of the New-England Charters.”³ Moreover, governors were sometimes charged with keeping the council subservient by means of a judicious system of patronage.⁴

     To present only this side of the case, however, would be to give a false impression. The governor’s control of the constitution of the council was by no means absolute, a fact which must be borne in mind in any fair consideration of the sweeping charges of subserviency brought against the provincial councils. If there are many instances of subservient councils, there are also cases of direct conflict between governor and council. Take, for example, the case of the Virginia council, which by one author was represented as completely under the governor’s thumb.¹ By other writers the situation was viewed in a very different light. Chalmers says of this council during the reign of Queen Anne: “From the constitution of this province, twelve counsellors enjoyed almost every power,” even attempting to control governors and frequently succeeding in securing their recall. According to the same authority, a combination of six councillors secured the recall of Governor Nicholson.² Governor Spotswood, who succeeded to the government a few years later, made frequent complaints in his letters of the factious and unreasonable claims of the council, saying that it was under the control of a family who had succeeded so well as to remove two governors while they themselves had kept their seats, and whom he now suspected of intriguing against himself.³ Here, then, clearly enough was a strong aristocratic body very different from the subservient creatures of the governor whom we might have expected to find. In 1711 Governor Hunter of New Jersey complained of the council’s obstinate resistance to public measures upon which governor and representatives were agreed.⁴ In 1749 the governor and assembly of New Jersey had one agent in London,

and the council another.¹ The case of Governor Keith and the Pennsylvania council has already been referred to. These instances are enough to show that the councillors must not be regarded necessarily as mere figureheads, since they are seen to have been often men who could and did act even in opposition to the governor’s favorite measures. Indeed, with the increasing number of restrictions upon the governor’s power of suspension and appointment, it became more and more difficult to get rid of opposition within the council, or even to prevent opponents from becoming councillors.

     With these limitations always in mind, it must be said, however, that as a rule the council could be relied upon to support the governor in his defence of his own prerogative and of the interests of the crown. This fact was clearly shown by the action of the council in legislation, in which it generally supported the governor against the lower house. For example, bills that were likely to be opposed by the governor were usually stopped in the council, a practice of which a good illustration is to be found in Maryland politics during the years 1753-1759. This was a stormy period of conflict between the governor and the assembly over supply bills, and yet during the six years there is no record of any veto by the governor: all bills presented to him were approved, and this fact clearly indicates that obnoxious legislation was blocked by the upper house.² Indeed, the council was sometimes even more conservative than the governor. Thus in South Carolina, on one occasion, the councillors, at the expense of their popularity, opposed the bills for the issue of paper money, although these measures had the support of the governor as well as of the assembly.³ In Pennsylvania Governor Keith adopted the policy of winning popular support by an alliance with the assembly; and it was the resistance of the council to this design that brought on the discussion as to the powers of the council.⁴ A later governor approved a bill for the issue of

paper money, in the face of a protest by the council against the bill on the ground that it was dangerous in its tendencies and inconsistent with the governor’s instructions.¹

     The efforts made in Pennsylvania to get rid altogether of the intervention of the council have been already noticed. In Maryland, too, which was very probably under the influence of Pennsylvania ideas, the doctrine prevailed that “the Upper House is no Part of our Constitution.”² A more practical expression of this jealousy of the council is seen in the assembly’s policy of denying the council any right to initiate or to amend money bills.³ Furthermore, the value of the council as a barrier against radical legislation was also much impaired by its very constitution: appointed as it was by the crown, it had little of that popular local support which alone could give it any great weight or influence. The royalist writer, Anthony Stokes, thought that if this difficulty had been met, if the council had been made a local, hereditary aristocracy with interests bound up with those of the crown, the Revolution might have been prevented.⁴

     It is interesting to note that the Massachusetts elective council showed very nearly the same constitutional tendencies as the nominated councils of the other colonies. Though chosen by a vote in which the lower house predominated, it was distinctly conservative, partly perhaps from the fear of incurring a veto from the governor on its next election, partly owing to the personal influence of the governor exercised in other ways, and partly, without doubt, because of the conservative influence of executive responsibility. A certain phase of popular feeling on this point is illustrated by an interesting anonymous pamphlet of the year 1708, which charged the councillors, in language more forcible than refined, with subserviency

to the governor, censuring their timidity in strong terms; and furthermore contrasted unfavorably the elective council of Massachusetts with the nominated councils of the other colonies.¹ There is an entry in the diary of Samuel Sewall which gives a similar impression.² That this view was not always the correct one, however, is shown by Dudley’s statement that there were “commonwealthsmen” even in the council, and by the fact that Lord Bellomont had serious differences with his council.³ Nevertheless, the governor’s veto seems on the whole to have been effective in keeping the opposition out of the council; for in the heat of the controversy over the salary question, the council took the governor’s side, and in 1719, in a long struggle between the council and the House over the impost bill, laying a tax on British goods, the council urged as its ground of objection that the bill was contrary to the governor’s instructions.⁴ Hutchinson said of the council that it was too dependent on both governor and people, being at different times under the influence of the one or the other, adding that “the most likely way to secure a seat for many years” was “to be of no importance.”⁵

     In addition to other causes which have already been suggested, the conservatism of the council was due very largely to the presence of several men of official position. For example, in 1765 there were in the council the lieutenant-governor, the secretary of the province, judges of the Superior Court, and the attorney-general; and Hutchinson says that, with very few exceptions, the judges of the Superior Court had been elected to the council. Now these were all appointees either of the crown or of the governor, and hence as a rule—to use a contemporary phrase—“government men.” Hutchinson himself was for some years both councillor and lieutenant-governor, and seems to have been a sort of leader in the business of the

council. In 1766, however, a radical change was made. The House then assumed an aggressive attitude, striking off from the list of councillors the lieutenant-governor and the most prominent of the official members, with the result that the relation of the council to the House and the governor respectively was entirely changed. The leadership of the council now passed from the hands of Hutchinson into those of Bowdoin, a popular leader, under whose management the council was brought into sympathy with the lower house.¹ It was this altered disposition of the council, no doubt, which caused a provision to be inserted in the Massachusetts Government Act, to the effect that the councillors should hereafter be appointed, as in the other colonies, by the crown upon the governor’s recommendation.

     To sum up what has been noted as to the position of the council in the provincial constitution, it may be said that, although it is a mistake to suppose that the council was always or necessarily under the control of the governor, yet, as might have been expected from its constitution, it was usually on the governor’s side in his contests with the assembly, exercising upon the whole a conservative influence. Furthermore, it is evident that this conservative tendency was found in the elective council of Massachusetts as well as in the nominated councils of the other colonies. In the words of Hutchinson, “neither in Massachusetts, nor in the royal governments, do we meet with that glorious independence, which makes the House of Lords the bulwark of the British constitution, and which has sometimes saved the liberties of the people from threatened incroachment, and at other times put a stop to advances making upon the royal prerogative.”²