IN the study of the governor’s powers, no systematic consideration has hitherto been given to his authority and duties in connection with the judicial and legislative departments of the provincial government. The question as to the relative importance of these different forces in the constitutional life of the province is of the highest consequence to a true conception of the governor’s actual position. Of the two powers, the judiciary and the assembly, the latter was by far the stronger, the more nearly independent, and therefore from the present point of view the more important.

     The governor in his relation to the judicial system of the province may first be considered. Here again the analogy of the royal prerogative proves useful. In the English constitutional tradition, the king was “the fountain of justice and general conservator of the peace of the kingdom”; hence he had the right to erect courts, the processes of which ran in his name and were executed by his officers; he was moreover the prosecutor in criminal cases, because all such offences were committed “against the king’s peace, or his crown and dignity.” In course of time, however, practice had seriously modified this traditional theory. The king had originally possessed judicial power in himself; but gradually the actual administration of justice had passed into the hands of courts, the jurisdiction of which could not be changed without act of Parliament, and the independence of the judges had come to be secured by commission not as before during the king’s pleasure, but during good behavior.¹ In practice, therefore, the English judiciary had gained a degree of independence of the crown quite inconsistent with the ancient tradition.

     In the commissions of the royal governors is found an interesting survival of the old theory. The governor, for example, was empowered by his commission to erect courts of justice; as has been already seen, he also had the appointment of judicial officers; and, finally, he formed with the council the highest court of appeal in civil cases. At first these powers, like those of the king, were much more extensive; but the organization of inferior courts and other legislation of the assembly soon brought them within narrower limits. Since the question as to the appointment of judicial officers has already been considered under the general head of the appointing power, it will be enough here simply to state the general rule, namely, that judges and justices of the peace were appointed by the governor with the consent of the council.¹ The question as to the tenure of judicial offices deserves somewhat more particular attention, in that it affected the relation of the governor to the judiciary.

     It is obvious that a system of appointments during good behavior is far more favorable to the independence of the judiciary than appointment during pleasure. The early instructions were not clear on this point, directing merely that there should be no removals without just cause, which was to be made known to the home government, and that there should be no limitation of time in the commissions issued to judicial officers. These provisions were made, as the instructions declared, in order to prevent arbitrary removals, though it is not clear how this result was to be produced unless offices were to be held during good behavior.² Whatever the intention may have been, there seems to have been no uniform practice, though it is certain that in many of the colonies judges were appointed to serve during good behavior, and that in some colonies acts were passed to enforce this principle.³

The home government, however, stated distinctly its disapproval of the practice. In 1751 the assembly of Jamaica passed an act providing that all judges of the supreme court should hold office during good behavior, and the act was referred to the law officers of the crown for their opinion. The latter held that the provision seriously affected the royal prerogative, and that under the circumstances it was not “advisable, either for the interest of the plantations themselves, or of Great Britain,” that the colonial judges should hold office during good behavior.¹ In 1754 the instructions to Governor Dobbs of North Carolina contained distinctly the requirement that commissions should be granted during pleasure only.²

     Nevertheless, judicial commissions continued to be given during good behavior, and acts were passed in Pennsylvania in 1759 and in North Carolina in 1760 definitely prescribing that form of tenure. Early in the year 1761 the New York assembly also passed a bill for the same purpose, but it was defeated by the opposition of the governor. The Pennsylvania and North Carolina acts were disallowed by the crown. In passing upon the New York case, the Board of Trade insisted on the enforcement of the royal instructions on this point.³ The result was that an additional instruction was issued in December, 1761, reciting the previous neglect of the royal orders, and charging the governors, on pain of removal from their posts, to assent to no acts regulating in any way the tenure of judicial officers, and to issue all commissions during pleasure only, “agreeable to what has been the Ancient Practice and Usage in our said Colonies and Plantations.”⁴

     This decision of the home government was still strongly resisted. The assemblies of New Jersey and New York declared their intention of granting no salaries to judges

unless the commissions were during good behavior.¹ Nevertheless, the Board of Trade determined to enforce the rule; and accordingly in 1762 Governor Hardy of New Jersey was removed for disobedience in this respect, even though, before his actual removal, he had reversed his former action and had succeeded in getting the justices to accept commissions during pleasure.² By the year 1765 Lieutenant-Governor Colden was able to report that the rule was enforced in New York also.³ The popular feeling of opposition continued, however, and finally found expression in the well-known clause of the Declaration of Independence, which states, as one of the grievances against the king, the fact that “he has made judges dependent on his will alone for the tenure of their offices.”

     The arguments by which the home government justified its action deserve some attention. In answer to the declaration of the people of New York, that such commissions in England were granted during good behavior and that sound policy required the same action in the colonies, the Board of Trade insisted that colonial appointments stood on an entirely different footing, saying that in England the principle of tenure during good behavior had been adopted on account of the arbitrary action of the crown prior to the revolution of 1688, and apparently assuming that no such danger existed in the colonies. A special reason assigned for making appointments in the colonies during pleasure only was that there the material available for such offices was of poor quality; it was believed to be desirable that, when a man of superior talents was once found, the removal of inferior men who stood in the way of his appointment should be as easy as possible.

     Another reason assigned for the adoption of a different rule in the colonies was that by the general practice of the colonial assemblies salary grants were made temporary, whereas in England they were fixed by permanent appropriations. It was claimed that, without this unlimited right of removal, the crown or its representative would be forced to see the

judiciary become completely subservient to the assembly; the Board, therefore, condemned the rule of tenure during good behavior as destructive of the interests of the subject and as “tending to lessen that just Dependance which the Colonies ought to have upon the Government of the Mother Country.”¹ It may fairly be assumed that in this last clause we have the real secret of the royal opposition to the permanence of judicial appointments.

     In addition to this means of influencing the judiciary, the governor was assigned by his commission the right, with the advice and consent of the council, to erect courts of justice, though limited in the exercise of this power by his instructions, which usually forbade him to erect new courts without a special order from the crown. He was further directed to see that in these courts justice was impartially administered.² This power of erecting courts was the subject of a very vigorous controversy. The practice in the different colonies, and even in the same colony at different times, varied so much that it is impossible to make any accurate generalization; but it is easy to find numerous instances in which courts were established by the action of the governor and council. Thus, chancery courts were in most cases established without any legislative process;³ and in New Jersey the early judicial system was based mainly upon ordinances of the governor and council.⁴ There are instances, too, in which, in the absence of any legislation, the governor was expressly directed to provide

for the necessary courts. This was the case in North Carolina, where in 1754 the instructions to Governor Dobbs, after declaring the repeal of the judiciary act of 1746, provided for deficiencies by directing the governor with his council to establish courts of justice. In Pennsylvania similar action was taken in 1707.¹

     On the other hand, acts of assembly were constantly passed, erecting courts and defining their jurisdictions; in fact, it may be said that, as a rule, courts were established and organized by such acts, and not by ordinances of the governor and council.² Yet this circumstance did not necessarily imply a denial of the legality of the latter method. For example, in 1705 Virginia passed an act establishing the General Court of that province, and declaring also that the courts therein named should be the only courts of record in the province; in order to avoid misunderstanding, however, an explanatory act expressly recognized the right of the crown to erect courts.³

     Nevertheless, it must be said that there was also very general opposition to the exercise of this power by the governor, a very widespread feeling that such action was illegal. In Pennsylvania, where ordinances of this sort were several times passed, the assembly denied the governor’s right to take such action.⁴ In South Carolina also, the court of exchequer erected by Governor Nicholson was regarded as exercising an illegal jurisdiction;⁵ and the New York assembly, in 1727, condemned the action of the governor in erecting a court of chancery with out the consent of the assembly.⁶ In short, so good an authority

as Thomas Pownall declares that the right of the governor to erect courts was “universally disputed.”¹ The home government, too, seems to have recognized the propriety of action by the assembly; for the instructions to Governor Lovelace of New Jersey, in 1708, contained a clause directing him to recommend to the assembly the passage of an act creating a court for the trial of small causes.² It appears therefore that, although the governor was authorized by his commission to erect courts with the consent of the council, he was by his instructions restricted in the exercise of this power; that courts were regularly established and organized by, acts of assembly; and that the right of the governor to erect courts by ordinance was very generally disputed.

     A third method by which the governor made his influence felt upon the provincial judiciary was a necessary consequence of his position as chief executive. As such it was his duty to see that the laws were duly enforced; with him, or with agents appointed by him, lay the enforcement of judicial decisions; and with him also rested in part the duty of prosecution. The attorney-general of the province, though not always appointed by the governor, was subject to his orders; and prosecutions might be ordered by the governor and council, or, when once begun, might be suspended by their order.³ It is clear that in these various ways the governor had an important influence for good or evil upon the administration of justice.

     Hitherto attention has been given only to the action of the governor upon the judiciary power from without, through his influence in the constitution of the courts and in the enforcement of judicial decisions,—powers which, with the exception of the right to erect courts, are normal functions of the executive. The governor was more than an executive officer,

however: he was himself a part of the judicial system. In the early days of the colonies there was, as has been seen, very little scientific definition of powers; the administration of justice was then in some cases almost entirely in the hands of the governor and council. As time went on, the organization of courts, by acts of assembly or otherwise, naturally brought the governor’s activity within much narrower limits; but in nearly all the colonies something of his old judicial power survived.

     The governor’s criminal jurisdiction seems for the most part to have passed away; but in Virginia the governor and council, under the name of the “General Court,” continued to be the highest court in all cases, criminal as well as civil.¹

     The most important judicial function of the governor and council was the hearing of appeals in civil cases in which the value in question exceeded a certain fixed sum.² This amount varied in different provinces: in the instructions to Lord Cornbury, in 1702, the right of appeal to the governor and council was limited to cases involving more than one hundred pounds sterling;³ a Maryland statute of 1713 directed that appeals should lie from the provincial court to the governor and council only in cases involving more than fifty pounds;⁴ an additional instruction of 1753 raised the minimum value for which a suit might be carried to the governor and council to three hundred pounds.⁵ In order to guard against abuses, a further right of appeal to the Privy Council was instituted by which appeals were allowed in cases involving from two hundred to five hundred pounds. Appeal to the home government was

thus ordinarily possible only when very considerable sums of money were involved.¹ There were also several other conditions tending to discourage the reference of suits to the crown, one of which was the requirement that the appellant should give notice of appeal within fourteen days and furnish bonds to answer the charges in case the sentence should be confirmed; and still another lay in the fact that the process of appeal to a distant tribunal necessarily involved great inconvenience and expense. The result was that the governor and council were inadequately checked in the exercise of their judicial functions.²

     The governor was furthermore the keeper of the province seal, and as such was, in theory at least, chancellor with jurisdiction in equity cases, for the trial of which courts were set up in nearly all the colonies. In some provinces the governor himself constituted the chancery court; in others the governor and council were judges, each with an equal vote in the decision of the court.³ That this equity jurisdiction of the governor was generally distrusted is plainly seen in the popular view of the matter as given by Douglass in his “Summary”: “It is said that a Governor and such of the Council as he thinks proper to consult with, dispense with such Provincial Laws as are troublesome or stand in their Way in Procedures of their

Court of Equity, so-called.”¹ This popular distrust of the chancery court without doubt impaired its efficiency in no small degree. In Pennsylvania it met with serious opposition from the assembly, which soon refused to recognize its authority.² In New York the governor’s equity jurisdiction, though denounced by the assembly, was able to maintain a somewhat precarious existence; but it was held in contempt and was generally avoided, as indeed, according to Governor Pownall, seems to have been the case in other colonies in which such courts had been established.³

     Other judicial powers of the governor may be considered very briefly. As a part of his ecclesiastical jurisdiction, he had the probate of wills and the issue of marriage licenses;⁴ either alone or with the council he usually acted as a court of probate;⁵ in Massachusetts and New Hampshire at least the governor and council constituted a court for the decision of questions of marriage and divorce.⁶ The governor was also named in the royal commission for the trial of piracy cases, which usually included the governors of a few adjacent colonies, with some other officers of the colonial service.⁷

     Thus the governor, besides having an indirect influence upon the administration of justice through his control over the

organization of the courts and the machinery of enforcement, was himself a part of the judicial system, in one important class of cases forming with the council the highest court of appeal within the province. It is clear that under such a system the independence of the judiciary must have been seriously impaired; indeed, so conservative a writer as Hutchinson speaks of the judges during one administration as distinctly dependent upon the governor,¹ referring specifically in this case to Belcher’s frequent removals of judicial officers.

     Furthermore, numerous cases might be cited of gross abuse by the governor of his influence upon the administration of justice. A classic illustration of such abuse is seen in the judicial murders of Berkeley’s time; and another striking example of the same improper influence appears in the case of Nicholas Bayard of New York, who was tried and convicted of high treason by a packed court and jury, and sentenced to be hung and quartered, merely because he had made certain injudicious criticisms of the provincial administration.² Again, there is a case in which a governor grossly abused his power over the Supreme Court in order to gain his personal ends. Governor Cosby of New York had ordered a suit before the Supreme Court in a case involving the payment of his salary. The court ruled that this was a case in equity of which it could not take cognizance; whereupon the governor sent an abusive message to Chief-Justice Morris, declaring him unfit for his position, and shortly appointed in his place one of the judges who had given an opinion favorable to himself. Cosby declared that the removal of Morris was necessary in order to discourage the advocates of “Boston principles,” which was a general term for opposition tendencies. In the famous Zenger case, Cosby used all his influence to bring about the conviction for libel of the man who published Morris’s criticism

of the governor’s action; and he was defeated only by the bold appeal of Zenger’s counsel to the jury.¹

     Clearly, a judiciary so constituted and so controlled could hardly have exercised any effective check upon the governor; and furthermore the process of appeal to the home government was so difficult as to be worth little as a restraint upon his action.