Two aspects of the governor’s relation to the legislature have now been considered: first his influence in the constitution of the assembly and upon its individual members, and secondly the part assigned him in the direct work of legislation. It is now time to pass to a consideration of the other side, to a study of the control which the assembly was able to exercise over the governor and of the use which it made of that control in its gradual assumption of executive powers properly belonging to the governor.

     In the first place, the assembly was a check upon the governor through its very existence as a critical body empowered to inspect accounts and eager to detect abuses in the provincial administration; furthermore, it gave to the public sentiment of the province a constitutional means of expression; it organized public sentiment and thus made it effective. The value of such influence is easily underrated: an assembly which performs this function, even though it be without any power of legislation or without the control of the purse, has yet in its hands a weapon against arbitrary government which is not to be despised.

     The assembly might control the executive by legislation directly limiting the governor’s powers, although such legislation was ineffective unless it received the governor’s assent. It is true that laws might be enacted with the consent of a weak or short-sighted governor, the repeal of which his successor would find it difficult, perhaps impossible, to secure; still, in order to be effective, this line of attack required some means of forcing the governor’s assent.

     By far the most important check upon executive action possessed by the assembly was certainly that exercised through its power over the purse. Inasmuch as no government can maintain itself without money, it is evident that a body which has the power to grant or refuse supplies holds the key to the situation. Such was the case in all the colonies, as has been already noticed. No principle was more firmly held than this, that no taxation within the province was legal without the consent of the assembly, and this doctrine came more and more to mean the domination of the lower house in all financial legislation.

     Inasmuch as the general question of supply has already been treated somewhat fully in connection with the governor’s financial powers, it will be enough here to state the main conclusions there reached. These were, that in nearly all the colonies even the bills for the support of the ordinary administration of government were temporary, often indeed for a space of only one year; that even in those colonies in which there was a permanent civil list it was constantly necessary to make demands for other purposes; and that these demands were often, as in time of war, of the most urgent kind. In the last chapter was seen something of the way in which this power of granting supplies was used by the assemblies.

     There is one phase of the general subject regarding the assembly’s control of the purse which requires a special treatment, namely, that which may for convenience be called the salary question. A consideration of this topic involves, in the first place, a study of the process by which temporary and even annual salary grants became established in most of the colonies, with some consideration of the arguments advanced on both sides of the controversy. In the second place, the effect of the practice will be noticed.

     The crown very early adopted the policy of throwing the support of the provincial governments, including the granting of official salaries, upon the provincial assemblies. Until the institution of the royal government in Georgia, there was but one government, royal or proprietary,—that of North Carolina,—in which the civil list was not provided for by either temporary

or permanent acts of assembly.¹ It soon became clear, however, that, if salaries were to be granted by the assembly, this body must in the long run control the amount of those salaries, and must even have the power to withhold them if it should see fit. This was a dangerous situation from the standpoint of the home government, which soon awoke to an appreciation of the fact that, with a governor dependent for his support upon the temporary grants of the assembly, the crown would lose one very strong hold upon the colonies. In two provinces, Maryland and Virginia, the issue was decided very early, in favor of the proprietor and the crown respectively, by the settlement of definite funds for this purpose.² Elsewhere the result was very different, though the same demand was made in all the other colonies.

     By the earlier instructions it was required of all the assemblies that no money should be granted to the governor directly, but that the grant should be made to the crown with the request that it be appropriated to the governor’s use if her majesty thought fit, otherwise to some other purpose stated in the act of grant; until the royal pleasure should be known the money was to remain in the hands of the royal receiver.³ The governor was further directed to recommend a permanent settlement of salaries.⁴ It would appear, however, that the requirement of royal assent to salary grants was almost universally ignored, and that the recommendation to settle salaries fell upon unwilling ears. In 1703 the crown therefore found it necessary to issue special instructions on this subject, reciting the evil effects of temporary grants in the colonies and urging the necessity of fixed salaries; the assembly was called upon to settle a salary upon the governor without limitation of time; and, when that was once done, no governor was to accept a present from the assembly on pain of the royal

displeasure and of recall from his province.¹ Some other instructions even went so far as to insist that the governor should accept nothing less than a permanent settlement.²

     These demands were easily made; but how were they received by the assemblies? This question, involving a consideration of the general controversy that sprang up throughout the colonies, may perhaps be studied to best advantage by following the course of the contest in the provinces of New York and Massachusetts.

     In New York the policy of making temporary salary grants appears plainly as early as 1707. An interesting letter .of that year pointed out that the revenue of the province was to expire in 1709 and that although some of the opposition were resolved not to renew it, yet a more far-sighted party proposed to make grants, though only from year to year in order to insure the dependence of the governor upon the assembly. Governor Hunter then appealed to the crown to settle a salary upon the governor, and in 1711 the Board of Trade went so far as to recommend, but without success, that a parliamentary revenue be established in New York.³ Then followed a succession of grants for fixed terms of years;⁴ but finally the House resolved to grant revenue for one year only, and from that time the government had to put up with annual grants.⁵ The crown still persisted in its demands, but without success the assembly declared that it would never give more than temporary support.⁶ When in 1755 these repeated demands met with another determined refusal, the Board of Trade appeared at last to recognize the hopelessness of its task, declaring that it was advisable to allow the governor to accept temporary

grants, and, though it held the refusal of the assembly to be unwarrantable, instructing the governor not to press the matter.¹ Clearly this step was hardly less than an unconditional surrender.

     In Massachusetts, as has already been noted, the issue was very early defined. According to Chalmers, there was in this province a very considerable party composed of those who were dissatisfied with the new charter, and who hoped to find some compensation in a policy of temporary salary grants.² Under the first two governors, Phips and Bellomont, these temporary grants, or presents, were all that the assembly could be induced to vote.³ In 1703 came the additional instruction already cited, calling upon the assembly to grant a settled revenue, in reply to which Governor Dudley wrote that for the present nothing could be done.⁴ Again, in 1705, the General Court was urged to make a permanent settlement; but the House in its reply argued that, since the ability of the province varied at different times, it was not expedient that salaries should be permanently fixed.⁵

     The efforts of Dudley’s successor, Governor Shute, met with no better success. In despair of accomplishing any result with the assembly, he recurred to the idea previously acted upon by Governor Hunter of New York, and petitioned the king to settle a permanent salary upon the present governor and upon all succeeding governors in New England.⁶ The Board of Trade reported that a salary ought to be settled and paid by the crown to the governor until the people of New England could be induced to make permanent grants; but this recommendation was not adopted, and Governor Shute was again instructed to recommend in strong terms the settlement of a fixed salary.⁷

     The crisis of the struggle came under Shute’s successor, Governor Burnet, who was instructed to insist on a permanent settlement, and who declared his determination to adhere strictly to his instructions.¹ Both parties in the struggle were now equally determined to hold their ground, and both stated their positions with perfect definiteness. The governor pointed to the precedent of the British constitution, with its careful provisions for the independence of each department of the State, calling attention especially to that one which secured the independence of the crown by a permanent civil list. He urged that the dependence of the executive was the weak point of the colonial constitution, and that the remedy lay in placing the office on an independent footing, claiming that the avowed purpose of keeping the governor dependent upon the assembly by means of temporary salary grants was not honorable, inasmuch as such a course prevented him from acting freely and according to his own judgment upon matters of legislation coming before him. As evidence that this was the real intention of the House in refusing permanent grants, he reminded it that it had often kept back the governor’s allowance until other bills had been approved.²

     The popular argument, on the other hand, is best stated in a message of the House in August, 1728.³ As against the governor’s reference to the British constitution, the Representatives urged that that argument could not be regarded as conclusive, claiming furthermore, that even on the analogy of the British constitution no part of the government ought to be wholly independent, since it was only by mutual dependence that the proper balance could be preserved. They called attention to the fact that, although the governor was dependent on the assembly for his salary, the assembly was in many ways dependent on the governor. In reply to the governor’s suggestion that the temporary salary granted to the governor, in contrast with the permanent provision made by Parliament

for the support of the crown, showed a lack of proper confidence in the governor, they urged, while maintaining that their policy implied no lack of confidence, that the governor’s tenure was too uncertain to give him any strong interest in the prosperity of the province such as the king had in the mother country. In another resolution the House laid down the same principle, declaring that, after a salary was settled, the governor’s particular interest would be very little affected by serving or neglecting the interest of the people.¹ This one statement contains the gist of the whole controversy, giving essentially the argument of the assembly and indicating the argument of the crown.

     The two positions were now frankly stated, and they were irreconcilable. In the meantime the assembly had all the advantage on its side, insisting that the governor should take a temporary salary or none at all. Burnet maintained a gallant and honorable but hopeless struggle until the time of his death, constantly refusing, at great personal sacrifice, the most liberal propositions if only the principle were conceded.²

     It would seem that by this time the hopelessness of attempting to force the royal policy upon the assembly must have been clear; but the instructions to the next governor give no evidence that the home government was inclined to yield. Nevertheless, the contest was practically over. Burnet’s successor, Belcher, was obliged at first to get special leave from the crown to assent to particular grants, and finally to obtain a general permission to accept temporary support.³ The Board of Trade, though it recommended this surrender, urged that it would be better for the crown to establish a standing salary; but again its recommendation failed of any practical results. Shirley, who succeeded Belcher, was directed to recommend a permanent settlement, but, if that could not be secured, to

accept annual grants.¹ Thus in Massachusetts, as in New York, the contest ended in the victory of the assembly.

     The struggle in the other provinces presents no peculiar features, unless in the case of New Hampshire, whose assembly was several times induced to settle a salary upon the governor during his term of service. Even this measure of success was finally lost, and New Hampshire followed the example of her neighbors in making annual grants.²

     There can be no doubt that the House used its power to extort legislation from the governor even in violation of his instructions, as a few examples will plainly show. For example, Clarke of New York was charged with having passed the triennial act in return for his salary, which was not always voted as a matter of course.³ Again about 1765 the South Carolina assembly, irritated by a real or supposed breach of its privileges, withheld the governor’s salary altogether;⁴ and at an even earlier date the council of the same province had declared that the acceptance of temporary grants by the governor was “the great bane” in the province.⁵ In 1721 the Massachusetts House resolved that it would not consider grants and allowances until the governor had passed upon the acts of that session.⁶ In 1727, when a bill for the emission of paper money, presented by the House, was vetoed by the governor on the ground that it was contrary to his instructions, the House again withheld salaries; whereupon a new bill of similar purport sent up to the governor received his approval.⁷ Lewis Morris, while president of the New Jersey council, wrote: “The rendring governors and all other officers intirely dependant on the people is the generall inclination and endeavour of all the plantations in America, and nowhere pursued with more Steadinesse and less decency than in New

Jersey.”¹ Morris himself afterwards became governor, and confirmed his previous statement by his own experience.² Nowhere, however, was the policy of keeping the governor under control by temporary grants, of granting money in exchange for legislation, more frankly and more cynically avowed than in Pennsylvania. In 1709 the assembly declared that the duty of supporting the government was grounded upon the “condition precedent” that grievances should be satisfied;³ and the governor was informed that the House had voted him two hundred pounds, and that the speaker would present him a bill for that amount when he had passed the acts referred to him.⁴ On another occasion the assembly thanked the governor for passing certain bills, and then gave him an order on the treasurer for his salary.⁵ Under Governor Keith the principle of bargain and sale seems to have been carried to an extreme point; indeed, so largely a matter of course did this system become that the assembly in 1744, in giving Governor Thomas his annual salary at one time instead of granting it as usual in two instalments, alluded to its action as a special “Mark of Confidence.”⁶

     Another notorious offender in this respect was Governor Denny. In 1759, in violation of his instructions, he signed an act for the issue of bills of credit. The councillors in their formal protest insinuated improper motives, and immediately after his approval of the bill he was presented by the speaker with an order on the treasurer for one thousand pounds. In the following year the proprietary protested against several acts passed by Denny, for each of which, according to Chalmers, he had received a distinct sum from the delegates, with an “indemnification” against the forfeiture of his bond.⁷ The

demoralizing influence exerted upon the public conscience by such practices is well illustrated by the cynical declarations in a publication sanctioned by no less distinguished a patriot than Benjamin Franklin. “Every proprietary Governor,” it was said, “has two Masters; one who gives him his Commission, and one who gives him his Pay,” adding, “the Subjects Money is never so well disposed of as in the Maintenance of Order and Tranquility, and the Purchase of good Laws.”¹

     It is easy to see that this method of controlling the executive was in many respects thoroughly vicious. It proved the danger of having an executive dependent for support “upon the temporary and arbitrary will of the legislature,” inasmuch as this body often used its power improperly; and it gave rise to constant bargaining between governor and assembly, often on terms dishonorable to both. Nevertheless, the force of the popular argument, as stated by men like Franklin, cannot be denied. Here, it was said, were strangers, with no permanent stake in the province which they were sent to govern, often men of vicious character or mercenary motives, with little sense of personal responsibility, and officially accountable only to a distant authority across the sea: hence, if there was to be any effective popular control of the executive, it must be exercised by making the governor feel his dependence for support upon the assembly.²

     It is worth noting that the men of the constitutional period, who had seen the working of the system in the colonies, even extreme radicals like Jefferson, were able to see that, although the method was perhaps inevitable under the circumstances of the colonial era, it was yet inherently vicious; they saw that such a policy could have no justification in an elective system in which the executive, just as truly as the legislature, was the representative of the people. In Jefferson’s draft of a constitution for Virginia there was a provision that the governor’s

salary should be unchanged during his whole term of office;¹ and the same principle was laid down by the framers of the constitution of the United States, in the clause providing that the salary of the President is not to be increased or diminished during his term of office and that during that period he is not to receive “any other emoluments from the United States, or any of them.”²