Colonial America

by Richard Middleton, Anne Lombard

  The most heated battles between the Crown and the provincial representatives were fought over the control of finance. Though the assemblies had gained the right of initiating taxation, the Crown continued to fight a rearguard action for a permanent source of revenue, especially to pay the governors' salaries. The British were terrified that their officials would be blackmailed into making concessions if their salaries had to be renewed annually. In reality only one episode lived up to the authorities' apprehensions, after Governor Shute refused to accept the Massachusetts assembly's nomination for the speakership. The house first responded by reducing his stipend and then in 1720 refused to pay him at all. Matters finally came to a head in 1728, when Shute's successor, Governor Burnet, was instructed to demand a permanent revenue, hinting at possible parliamentary action in the event of a negative response. The house refused but did offer the governor an increased stipend on the old conditions. Burnet continued to resist, even proroguing the assembly to Salem, and the issue dragged on until his death in September 1729. In the end the next governor, Jonathan Belcher, accepted the increase and the subject was quietly dropped. The royal representatives were ultimately reluctant to involve Parliament, for fear of reducing the royal prerogative. Equally, the assembly was not unaware that a further confrontation might lead to the loss or amendment of the charter.

  Another financial matter which caused dispute was the issue and audit of money. The Crown took the view that taxes were “aids to the king” which gave it the right to dispose of the money as it wished. To this end the governors were strictly enjoined to ensure that all monies were issued through their own hands. But several assemblies argued that what the people had granted should be spent only as they designated.

  Unfortunately for the Crown, it had already lost this battle in a number of colonies during the confusion of the late seventeenth century. In Virginia the issue of money since 1691 had been exercised by the treasurer, who was appointed by the house. A similar practice prevailed in South Carolina, where a weakened proprietary government had given way. In the aftermath of Governor Cornbury's corrupt stewardship, New York had adopted the same practice, arguing successfully that the assembly must protect the public from such notorious peculation. Once a precedent had been set it was almost impossible to reverse.

  The control of expenditure was most controversial in wartime, when emergency levies were imposed. On these occasions the lower houses frequently specified that commissioners were to accompany the army to supervise military expenditures. Similar tactics were adopted in the financing of presents to the British colonies' Indian allies. The Crown feared that the assemblies would thereby gain control of these important areas of policy and thus undermine the royal prerogative. The Massachusetts assembly caused offense in this respect in 1720 when it tried to supervise the running of several military posts in Maine by the direct vetting of expenditures.

  One other matter of constitutional dispute concerned the tenure of judges. In both North Carolina and New Jersey attempts were made to give colonial judges commissions on the English basis of good behavior rather than at the king's pleasure, in order to protect their appointments from executive interference. As already noted, the Crown did not believe that colonial judges were sufficiently competent or mindful of imperial requirements to be given tenure for life. Moreover, as most judges were paid, like governors, only on a yearly basis, they would be substituting dependence on the executive for one on the legislature, an even less desirable relationship. In 1752 the Privy Council issued a general directive that all judicial appointments were to be at the king's pleasure. The issue did not become really contentious until after 1760.

  Finally, in several royal colonies attempts were made to restrict the powers of the council on the grounds that it was an arm of the executive, not the legislative, branch of government. The most sensitive area in this respect was the right of councils to amend money bills. In South Carolina the assembly refused the council this right from the late 1730s, claiming the same exclusive power over taxation as the House of Commons did in England. In some provinces the response of the councils was to differentiate between their executive and legislative functions by excluding the governor from the latter deliberations. In New Jersey Governor Lewis Morris voluntarily withdrew when bills from the lower house were under discussion. However, in South Carolina the appointment of expatriates from England led the assembly to demand the council's exclusion from all legislative matters, arguing that it was improper for placemen to be involved in the making of laws.

  Intermingled with these constitutional issues were other policy matters which provoked conflict between the Crown and provincial assemblies. Here again, Massachusetts was in the forefront though for a time it seemed that the appointment of a native Bostonian, Jonathan Belcher, as governor in 1730 would help calm the situation after the acrimonious disputes about the speakership and payment of the governor's salary.5 Belcher decided that the key to a successful administration was to build his own party in the assembly. During his first year he dismissed 51 justices of the peace and other local officials, replacing them with persons linked to potential sympathizers in the assembly. The evidence suggests that he offended more than he cajoled, which proved unfortunate when the Land Bank became a burning issue at the end of the 1730s. By then Belcher had too many enemies to control the situation.

  The disallowance of the Land Bank, however, was to prove a turning point in the politics of Massachusetts. In 1741 Belcher was replaced by William Shirley, partly because of intrigues by his opponents and in part because of his poor handling of the bank issue. Though an Englishman, Shirley had first come to the colony in 1731 and had served Belcher as advocate general of the admiralty court. A man of considerable charm and ability, he did not try to change the leadership of the assembly, unlike Belcher, preferring to work with those already there. Shirley's adept handling of the final stages of the Land Bank issue, his subsequent willingness to accept paper money, and his organization of the expedition against Louisburg in 1745 brought the old antagonistic relationship between the executive and the legislature almost to a close.

  He was also helped by the growth of a Court party and a more pragmatic Country party leadership (see section 4 below). Massachusetts was exceptional among the colonies in the intensity and duration of its quarrels with the Crown, which were exacerbated partly by its long tradition of self-government during the seventeenth century. It took time for these commonwealth traditions to die.

  New York had problems of a different kind. Riddled with faction for much of the seventeenth century, in 1702 it had the misfortune to receive Lord Cornbury as governor. Cornbury came with only one end in view, to make himself rich. He siphoned off money from the provincial treasury and made lavish land grants, playing one faction off against another to his own advantage. He also offended many of New York's inhabitants by dressing as a transvestite.6 He was equally cavalier in his treatment of New Jersey, of which he was simultaneously governor. His final affront was to ignore the Toleration Act of 1689 by imprisoning the Presbyterian minister Francis Makemie in 1707 for preaching. Although Cornbury was related to Queen Anne, the Whig administration in London insisted on recalling him, thus illustrating the new commitment to honesty which permeated government after 1689.

  The appointment of Robert Hunter as governor in 1708 initiated a period of relative harmony. Hunter was a cultivated man, whose good manners and fine sense of judgment enabled him to steer between the opposing Leislerian and Anglo-Dutch factions. No less important was his ability to sort out the province's finances, including the grant of a five-year revenue to the Crown, though he achieved this only by acknowledging the right of the assembly to appoint the provincial treasurer, a significant concession in the struggle to control finance. The good relations between the executive and legislature continued under his successor, Governor Burnet, until the latter's removal to Massachusetts in 1727.

  Unfortunately New York was to suffer from another high-handed gover
nor in the early 1730s. William Cosby, like Cornbury, was related to the English aristocracy, and he too had accepted a colonial appointment so as to revive his fortune. When he failed to secure some perquisites he created a special court of chancery to handle the case. This episode not only offended the chief justice, Lewis Morris, but also led John Peter Zenger to publish his New York Weekly Journal. Ultimately, Cosby upset too many people and in 1736 he too was recalled.

  After the departure of Cornbury, New Jersey in contrast witnessed little conflict between the Crown and assembly – at least until the governorship of Lewis Morris, when paper currency became an issue following the Privy Council's ban on further emissions. This led Morris to veto a bill for the issue of £40,000 in 1742, even though the assembly offered him an increased stipend and inserted a suspending clause as requested by the Privy Council. The assembly responded by withholding his salary. Morris then called new elections, but to no avail, even though he dissolved the assembly three more times and purged his council. The issue was resolved only by his death and the appointment of Jonathan Belcher, who was prepared to be more flexible, following his experience as governor in Massachusetts. His salary was paid, even though the Privy Council subsequently vetoed the currency bill. The assembly finally got its way in 1754 when financial necessity overruled the council's objections.

  Figure 35 Portrait of Major General Robert Hunter (1666–1734), attributed to Sir Godfrey Kneller, circa 1720. Hunter served as the colonial governor of New York until 1718. Collection of the New York Historical Society, New York City.

  Document 27

  Lord Cornbury instructed to obtain a permanent salary, 1703, reprinted in W. Keith Kavenagh, Foundations of Colonial America: A Documentary History (New York, 1973), Vol. 2, 1118–19

  The following passage contains instructions from Crown officials to the royal governor of New Jersey, Lord Cornbury. Questions to consider: Why was the Crown eager to have the colonial assembly give the governor a permanent salary, rather than voting yearly on whether to renew his salary for the year? Why did Crown officials direct Lord Cornbury not to accept gifts from the assembly? What does the Crown's inability to obtain a permanent salary for the royal governors tell us about the extent of the Crown's power in the colonies?

  Whereas we have appointed you our Governor-in-Chief of our province of New Jersey in America, and there being no provision made, as we yet understand, for the support of yourself or of the governor or lieutenant governor of the said province for the time being, we do hereby signify to you our royal will and pleasure that, at the first meeting of the Assembly after the receipt thereof, you do acquaint them with our expectation that, in regard of our receiving our good subjects of that province under our immediate protection and government, they do forthwith settle a constant and fixed allowance on you our governor …

  In consideration whereof we are hereby pleased to direct that neither you our governor, nor any governor, lieutenant governor, commander-in-chief or president of the council of our said province for the time being, do give your or their consent to the passing of any law or act for any gift or present to be made to you or them by the assembly, and that neither you nor they do receive any gift or present from the Assembly or others, on any account or in any manner whatsoever, upon pain of our highest displeasure and of being recalled from that our government.

  Unlike New York and New Jersey, Virginia experienced a prolonged period of political harmony from 1720 to the early 1750s. In some respects this was surprising, given the earlier conflict between the imperial authorities and the members of the planter elite. Indeed, the 1700s had witnessed an attempt by Governor Spotswood to break the planters' power, culminating in his appeal to the Virginia electorate in 1718 “to choose men of Estates and Family's of moderation … dutiful to their superiors.” The attempt failed, and Spotswood, unable to beat his opponents, joined them, buying large tracts of land and becoming a planter himself. He also humored the grandees by allowing them similar concessions and thus avoiding political controversy. Governor Gooch continued this policy, and the harmony was disrupted only following the appointment of Robert Dinwiddie in 1751. Dinwiddie provoked disputes on two occasions: once after an attempt to impose a minor fee on land grants, and the other when he vetoed an act regulating tobacco prices by the House of Burgesses. The problem in the latter case was the act's failure to include a clause suspending its operation until the consent of the Crown had been obtained.

  The suspending clause was not otherwise a serious issue before 1760. Perhaps only five percent of bills were disallowed for want of such a clause, or indeed for any other reason. Connecticut had fewer than six measures challenged in over a hundred years: in South Carolina a mere 20 out of 400 were challenged between 1719 and 1760. Many temporary bills were permitted in recognition that emergency action had been necessary. When measures were disallowed it was usually because they contravened the laws of trade. For instance, the 1723 Virginia tax on imported slaves was annulled at the prompting of British merchants who saw it as a threat to their commercial interests. At no time before 1760, however, did such disallowance threaten a serious constitutional disturbance. The colonies generally accepted the right of the Privy Council to exercise judicial review to ensure compatibility with the laws of Britain.

  The proprietary colonies were likewise not free from political controversy between their legislative and executive branches of government. Pennsylvania probably had more disputes than any other colony, continuing the tradition set during the first 20 years when David Lloyd led his country supporters against Penn and his wealthy backers in Philadelphia. In 1716 a bitter dispute over the right of Quakers to affirm rather than take an oath on the Bible in legal and administrative proceedings was stirred up by Governor Charles Gookin, despite the English Toleration Act of 1689 which allowed Quakers to be excused from the oath on conscientious grounds.

  There were periods of calm following the death of Penn in 1718. During the 1720s the main areas of contention occurred within the assembly itself when a former governor, William Keith, tried to wrest control from Lloyd in a battle for the speakership. The harmony between the executive and legislature continued even when Thomas Penn arrived in 1732 to restore the fortunes of his family.

  The outbreak of war in 1739, however, was another matter, as it immediately raised the issue of defense along the colony's western frontier. This issue had nearly cost William Penn his province 50 years before, and Thomas was determined not to repeat this experience. To meet the crucial need to form a militia, he set about building a party from the minority groups which could challenge the Quaker country party in the assembly. Thomas went so far as to organize gangs of seamen to intimidate the voters, but was signally rebuffed in the 1742 election, not least because the Quakers organized their own guard of shipwrights known as the White Oaks. This defeat led to talk of disfranchising the Quakers, while they in turn considered an appeal to the Crown for a royal charter. The antagonism became even more bitter with the steady distancing of the proprietary family from the Quaker religion. One sign of this was Penn's choice of Richard Peters, an Anglican clergyman, to be provincial secretary.

  The dispute over defense dragged on until 1747, when Benjamin Franklin appeared as peacemaker. Though associated with the Quaker party, Franklin was more flexible than the acrimonious Lloyd. Hence a bill was finally passed in 1748 for the support of a volunteer militia. This allowed the non-Quaker population to defend itself without contravening the conscientious objections of the Friends. Fortunately, hostilities with Spain and France did not greatly affect Pennsylvania, involving no more than some privateering between the Capes of Delaware. The issue was to resurface, however, during the French and Indian War, with rather more serious consequences.

  Maryland, the other proprietary colony, also had its share of disputes. Although the Calvert family had lost its governing rights in 1689, these had been restored in 1715 following Benedict Calvert's conversion to Anglicanism. Initially it was feared that
the family had acted merely for political convenience, since several Catholics immediately claimed positions of authority in the provincial government. In any event the proprietor refused to support them, and Protestant fears were calmed by a further act in 1718, requiring all officeholders to take oaths of loyalty to the Hanoverian monarchs and disavow the temporal authority of the pope. After this anti-Catholic fears subsided.

  Thereafter attention in Maryland politics shifted to the relationship between the council and the assembly. In reality this was a continuation of the old battle against the proprietary authority, since the Calverts controlled the council's membership. In 1725 the assembly claimed to be “the people's representatives for whom all laws are made” and proceeded to whittle down the powers of the upper house, denying them in 1740 the right to amend money bills. Disputes also developed concerning the right of the proprietor to a permanent revenue.

  The system in existence in most colonies thus produced periodic conflicts between appointed governors and elected legislatures, probably a predictable outcome given that each represented such different interests. Governors and their councils represented proprietors or the Crown. Assemblies represented local landowners. Only the corporate colonies of Connecticut and Rhode Island completely avoided overt tension between their legislative and executive branches of government since both were elected by the local inhabitants, and therefore enjoyed a close harmony of interests.

  There was one mechanism for resolving conflicts between the Crown and colonies: the system of agents who represented the provincial assemblies in London. Essentially the agents were lobbyists; their task was to ensure favorable consideration of colonial interests by the authorities at the center of the empire. Among their targets were the Board of Trade and Privy Council, but ordinary members of parliament were also lobbied since they could influence legislation affecting the colonies. The principal merchants who traded with North America were another important target, since they could give valuable support both inside and outside Westminster. The system provided a safety valve whereby the views of the colonists and imperial authorities could be reconciled to the benefit of both.