' LIBRARY ^ 
 
 UNIVERSITY OF 
 CALIFORNIA 
 
 SAN DIEGO
 
 Constitutional Conflict 
 
 IN 
 
 Provincial Massachusetts 
 
 A Study of Some Phases of the Opposition 
 
 Between THE Massachusetts Governor 
 
 AND General Court in the Early 
 
 Eighteenth Century 
 
 By 
 HENRY RUSSELL SPENCER 
 
 SUBMITTED IN PARTIAL FULnLMENT OF THE REQUIREMENTS 
 
 FOR THE DEGREE OF DOCTOR OF PHILOSOPHY 
 
 IN THE 
 
 FACULTY OF POLITICAL SCIENCE 
 
 COLUMBIA UNIVERSITY 
 
 COLUMBUS, OHIO 
 
 Press of Fred. J. Heer
 
 Constitutional Conflict 
 
 IN 
 
 Provincial Massachusetts 
 
 A Study of Some Phases of the Opposition, 
 
 Between the Massachusetts Governor. 
 
 AND General Court in the Early 
 
 Eighteenth Century 
 
 By 
 HENRY RUSSELL SPENCER 
 
 SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS 
 
 FOR THE DfEGREE OF DOCTOR OF PHILOSOPHY 
 
 IN THE 
 
 FACULTY OF POLITICAL SCIENCE 
 
 COLUMBIA UNIVERSITY 
 
 COLUMBUS, OHIO 
 
 Press of Fred. J. Heer 
 
 1905
 
 JK 
 
 5C 
 
 it 
 
 CONTENTS. 
 
 Chapter I. Antagonistic Colonial Ideals 5 
 
 Chapter II. Compromise in the Charter 13 
 
 Chapter III. The Prerogative Bodies 22 
 
 Chapter IV. The Popular House 42 
 
 Chapter V. The Salary Question 64 
 
 Chapter VI. Control of the Treasury 95 
 
 Chapter VII. Control of Military and Diplomatic Affairs . . . 115 
 
 (3)
 
 CHAPTER I. ANTAGONISTIC COLONIAL IDEALS. 
 
 In the constitutional history of Massachusetts there are pre- 
 sented to view three well marked periods of development, sep- 
 arated by revolutions. They may be called the colonial, the pro- 
 vincial and the commonwealth periods, and correspond roughly 
 with the seventeenth, the eighteenth and the nineteenth centuries, 
 respectively. But in its more obvious features, at least, this is not 
 a history of steady progress toward constitutional liberty ; rather 
 there are two periods of such development, separated by a third 
 of conscious reaction. 
 
 In the first or colonial period we see what claimed to be, and 
 in many respects was, a commonwealth, self-sufficient, dependent 
 on England for sovereignty, but itself assuming the exercise of 
 all sovereign powers. Barely nominal regard was shown for the 
 express commands of the king of England, and the relations held 
 with him were those rather of diplomacy than of colonial subjec- 
 tion. The reason for this was to be found first, in the infancy 
 of the colony, a time when generally the ideas of private founders 
 are allowed free course, in the ideal of a free Calvinistic common- 
 wealth, enjoying complete self-determination in a polity which 
 made the state serve the church ; secondly, after the colony had 
 acquired a character, and strength to stand for that character, 
 in the preoccupation of the home government with civil distur- 
 bance in England. 
 
 With the progress of Charles II's reign, as the purity of the 
 colonial ideal was corrupted and as the home government won 
 leisure to attack its problem of empire, this quasi-independent 
 regime was attacked by foes without and within, a process which 
 reached its climax in what may be called the revolution of 1684- 
 91. The foes without were the English agents of the Restoration 
 policy, such as Randolph and Andros ; the foes within were 
 Massachusetts men dissatisfied with the old regime, such as 
 Joseph Dudley and a growing party, who were wearying of the old 
 exclusive Congregationalism and the Puritan morals, or who had 
 commercial aspirations toward larger economic possibilities of the 
 province in trade with the mother country ; their co-operation 
 
 (5)
 
 6 CONSTITUTIONAL CONFLICT 
 
 resulted in 1684 in the annulment of the charter of 1629, the 
 downfall of the old self-government, and the setting up of a 
 provincial government strictly dependent upon England, first in 
 1685-6, as defined merely in Andros's commission and instruc- 
 tions, then in 1691, elaborated in a charter. What is often called 
 the revolution of April 19, 1689, when the Andros government 
 was overthrown and the old system set on its feet again de facto 
 for a brief period, must be regarded as a mere episode in the 
 experimentation toward a satisfactory provincial system. It cer- 
 tainly affected the form of that system, but the real revolution 
 was from colony to province. This was reaction from the Mas- 
 sachusetts point of view, progress from the imperial. The the- 
 ory of the empire demanded that its members be strictly subordi- 
 nated to its head, that the home government have its responsible 
 agents in the colonies, to secure co-operation and some degree 
 of uniformity. Hence an independent commonwealth, like the 
 Massachusetts of the seventeenth century, with no means of 
 enforcing the empire's will in the colony, was anomalous and 
 unendurable. 
 
 The present study is concerned with some phases of the sec- 
 ond or provincial period. The new system was a mixture of two 
 diverse, frequently opposed, sets of institutions, those of the 
 normal British province, and those commonwealth institutions 
 which Massachusetts had developed in her seventeenth-century 
 independence. In the antagonism soon found and developed 
 between them there appeared a constant tendency to reaction 
 toward colonial autonomy, a tendency which was constantly op- 
 posed and hampered in its progress by the prerogative elements 
 in the system. The latter had been designed to be predominant, 
 but were obliged perforce to give place more and more to the 
 encroaching popular elements. The provincial system of the 
 first part of the eighteenth century was then a multiform attempt 
 to reconcile actual British sovereignty with considerable practical 
 applications of colonial self-government. But as the century pro- 
 gressed the reconciliation became more and more difficult. The 
 menacing presence of the French on the northern border neces- 
 sitated during the "half-century of conflict" a conciliatory policy 
 on the part of England, to secure willing co-operation in defence, 
 and this meant that the constitutional issue must be postponed. 
 After the passing of the French peril in 1763 the issue was forced
 
 IN PROVINCIAL MASSACHUSETTS. 7 
 
 from home. But in a series of constitutional conflicts between 
 popular and prerogative elements of the system the province had 
 been developing a constitutional opinion, and a sentiment in favor 
 of that opinion : it held that self-government to secure the Massa- 
 chusetts conception of the rights of Englishmen was indispensable 
 to her welfare and was worth even the sacrifice of the British 
 name, if that should prove necessary ; it developed a sentiment that 
 was to prove strong enough even to sustain the shock of a war 
 to make good that opinion. 
 
 It is this development of the provincial period that resulted 
 in what is called the American Revolution, whose issue for Mas- 
 sachusetts was a third status, that of the legally as well as actually 
 independent commonwealth, fully self-determining in its policy 
 and conduct, and shortly entering into a union with other com- 
 monwealths for the purpose of making more secure the enjoy- 
 ment of independence and self-government. 
 
 It is necessary, first,, to examine the two opposing govern- 
 mental principles whose interaction is the key to the constitutional 
 history of the provincial period. Three-quarters of a century of 
 neglect by the home government had given the infant colony 
 opportunity to develop in its own way, its form determined by 
 the fact of organization as a corporation ; but even this form was 
 disregarded when the central purpose of the enterprise demanded 
 the assumption of powers not usual among corporations. Under 
 the guidance of two generations of determined, aristocratic Pur- 
 itans Massachusetts had become a theocracy, its sovereignty 
 vested in the "freemen" of the Massachusetts Bay Company, 
 whose power was concentrated, with the consent of the church- 
 members, in the hands of the rulers of the Congregational church. 
 This Company, originally organized with an English corpora- 
 tion's powers for trade, land-holding, and colonization, had been 
 transplanted to America, where it became merged in the colony 
 by the admission of the prominent resident colonists to the cor- 
 poration. It gradually forsook its natural original functions, and 
 became merely a political body, exercising as its chief reason 
 for being the power to "governe and rule,"^ which had been 
 intended to be merely incidental to the more ordinary powers of 
 colony-planting, land-holding, and trading. 
 
 ' Alass. Col. Records, I. 17.
 
 O CONSTITUTIONAL CONFLICT 
 
 The Assistants, or governing body of the corporation, began 
 the exercise immediately of executive, more gradually of legis- 
 lative and judicial, powers. But the first twenty years of the 
 colony's history saw a steady growth of democracy, the gen- 
 erality of the corporation asserting and making good their claim 
 to a share in the government. The result of this conflict was the 
 development of the General Court as the governing body of the 
 colony, composed of two houses, which, taken together, constituted 
 its highest authority and could speak the will of the Massachusetts 
 Bay Company. Massachusetts, in the seventeenth century, was a 
 prophecy of what the Great Britain of the nineteenth century 
 should be, a unified parliamentary system, with all powers of 
 government depending mediately or immediately on the legis- 
 lature, the General Court, which not only made law and raised 
 money in its legislative capacity, but also elected and super- 
 intended the action of the executive, the two departments being 
 in a relation of mutual control and guidance. The church-mem- 
 bership qualification made it far from a democracy resting on the 
 consent of the governed ; but to the extent of the church member- 
 ship, for the political people, it was practically what it sometimes 
 called itself, a commonwealth. It depended on the outside world 
 (even the mother country) for none of its essential powers; it 
 was a self-governing colony of the nineteenth-century type, rather 
 than a province of the eighteenth-century type. 
 
 The normal English province of the eighteenth century, on 
 the other hand, suggests the second of the two governmental 
 principles, whose contradiction and conflict was to be the central 
 thread running through Massachusetts provincial history. With 
 the restoration of Charles II came the formulation of the British 
 theory of colonies, that was to be put forth during a century and 
 a half, an essential part of the mercantile system. It regarded 
 the colony as existing primarily for the sake of the mother coun- 
 try, only secondarily for its own as part of that mother country's 
 family. The colony was justifying its existence only if it min- 
 istered to the development of the mother country, furnishing raw 
 materials for her manufacture or a market for her products. 
 Commercial interests were dominant, and the theory of govern- 
 ment for colonies was evolved with a view to promoting them. 
 
 Here, then, is the fundamental idea in the imperial theory of 
 colony government. The province was to exist not primarily for
 
 IN PROVINCIAL MASSACHUSETTS. 9 
 
 its own sake, but for the mother country. If, then, England's will, 
 and not that of Massachusetts, was to prevail, the form of govern- 
 ment must be adapted to that end. It must be a province and not 
 a commonwealth. The political center of gravity, the right to 
 give sovereign command, must be not within, not the general will 
 of the members, but without, in the sovereign will of England. 
 The expression and execution of that will in and for the colony 
 was most conveniently and effectually performed through a gov- 
 ernor. Its constitution was to be like that of the Tudors, a mon- 
 arch governing the people through his own action and that of 
 agents constituted and controlled by himself ; the representative 
 body existing merely to grant the taxes demanded and assent to 
 the laws proposed by the executive body. 
 
 This was in general terms the ideal English view of colonies 
 in the later seventeenth century. It never got a complete appli- 
 cation in Massachusetts except in the brief administration of 
 Andros, but it must be borne in mind as one of the two rival 
 principles. 
 
 The first shock of their opposition in Massachusetts came 
 in the early sixties on the home government's attempt to enforce 
 the acts of trade and to bring about substantial uniformity of 
 law throughout the empire, with the correspondence of Charles 
 II and Massachusetts, and the sending of the royal commission 
 of 1664. With the discovery, as the result of this correspondence 
 and of Randolph's efforts, that these two ends could not be at- 
 tained under the existing constitution, that the empire had no 
 agents to enforce its will in the colony, that the colony's govern- 
 ment was self-sufficient and could afford to be heedless of the 
 home government's suggestions or even commands, obviously the 
 next thing was the removal of the present obstacle, the colony 
 charter, on v/hich rested these claims of autonomy. Wtih the 
 annulment in 1684 of the charter granted in 1629, the colony 
 found itself in the hands of the king, with nothing in law to 
 prevent the complete application to Massachusetts of any colonial 
 theory he should deem fit. Would the state of public opinion in 
 Massachusetts and the force available for the purpose make it 
 practicable for the home government to apply the extreme pre- 
 rogative theory? The Andros regime was an experiment in this 
 direction. As an imperial official he was given powers nearly abso- 
 lute, all government to be by himself, assisted by a council named
 
 10 CONSTITUTIONAL CONFLICT 
 
 in England, a body which by the terms of its constitution could 
 be made an instrument entirely in his hands. Legislation and 
 tax-granting should be by this council, as well as the constitution 
 of courts of justice. 
 
 The failure of the Andros experiment was immediately due 
 to the collapse in England of the unconstitutional rule of James 
 II, and it is impossible to say whether or not it would have failed 
 in Massachusetts in case James's rule had been accepted by the 
 English people or William had accepted James's colonial theory 
 entire. It seems probable that at least a violent struggle would 
 have been made by Massachusetts against such a regime as per- 
 manent, for in spite of Andros's generally mild rule there was 
 very strong opposition in several parts of the colony to the pay- 
 ment of taxes, not as excessive, but as unconstitutional, the gen- 
 eral sentiment being one of resentment against Andros for "accept- 
 ing an illegal commission." Besides the constitutional opposition, 
 Andros found himself in a difficult situation in that he must 
 antagonize the two strongest elements of the population, the 
 ecclesiastical by his attempt to secure religious liberty (for the 
 Anglican church), the property-holding by his declaration of 
 the invalidity of titles which rested on grants by the general court 
 through towns (almost the universal form). 
 
 Whether inevitably or not, the Andros experiment failed, 
 and the settlement resulting from the "glorious revolution" was 
 in Massachusetts a compromise between the two principles of 
 government which up to that time received a trial. It was 
 early decided not to attempt to govern Massachusetts in the man- 
 ner of absolute monarchy ; that v/as probably impossible after 
 what happened at home in 1688. A charter should be granted de- 
 fining the relation between king and people. But it should not be 
 the old charter, under which practically absolute power had been 
 granted to or assumed by the general court. The new charter 
 of 1 69 1, deriving sovereignty nominally from the king of Eng- 
 land, so distributed powers that the exercise of sovereignty was 
 shared between the home government and the organized Massa- 
 chusetts people. The governor represented the tradition of the 
 Andros absolute government. The general court represented the 
 tradition of colonial self-government. The contrast is not the 
 same thing as the separation of executive from legislative powers, 
 but the two Viavc a close relation. In general terms, which will
 
 IN PROVINCIAL MASSACHUSETTS. II 
 
 receive considerable qualification, we may say that the bodies of 
 government which exercised executive powers represented the 
 provincial element in the system, while the bodies which exer- 
 cised legislative powers represented the commonwealth element. 
 
 The provincial period witnessed the interaction of these two 
 theories and forces. Government, in the last instance, was to be 
 by neither the governor nor the house, but by the two in agree- 
 ment, one necessarily yielding to the other. The compromise 
 (Pownall's "great question between external and internal princi- 
 ples")^ whose foundation was laid in the charter, was subjected to 
 modifications as time went on and as doubtful points in the charter 
 received interpretation. These determinations depended somewhat 
 on occasional circumstances, but in a larger way they show a ten- 
 dency toward the restriction of the charter rights of the king, 
 and the enlargement of the charter powers of the people, a ten- 
 dency by which the provincial constitution gradually reverted 
 toward the colonial. But the duality of the provincial government 
 was always marked, as compared with the unity of the colonial, 
 and though there were times when, under a native lieutenant- 
 governor or a weak governor, the house became practically the 
 sovereign parliament, controlling executive policy as well as legis- 
 lative, this was never more than temporary. As soon as the home 
 government realized the situation a new appointment brought its 
 proper agents again into action for the execution of its policy, 
 and the unified parliamentary government gave way to the normal 
 provincial government of balanced governor and house. 
 
 The purpose of this study is to portray the agents that were 
 used in carrying out these principles, especially the governor and 
 the house ; to study their characteristics as bearing on the general 
 question of their relation to one another; and to follow to their 
 conclusion some of the more important disputes, to find how far 
 the tendency, above hinted at, for the house to gain at the expense 
 of the governor, in the end prevailed. It is believed that such a 
 study is necessary to a proper appreciation of the constitutional 
 position of the respective contestants, when in the middle of the 
 eighteenth century the home government found itself ready to 
 push to an issue the differences of opinion then prevailing regard- 
 ing its constitutional rights over the colonies. In these contests 
 
 ^ Pownall, Administration of the Colonies, ix.
 
 12 CONSTITUTIONAL CONFLICT 
 
 the colony was learning the specific bearings of the difference be- 
 tween prerogative and popular theories of government, was devel- 
 oping the theoretical views which it was to claim and defend as 
 its own, and was educating opinion to a point where the people 
 would fight sooner than give up these constitutional claims ; in 
 a word, the whole provincial period was the time when the issues 
 were formulated and the forces were stored up which were to 
 occasion the American Revolution. Or it might be figured as 
 a siege, conducted on the plan of the successive capture of out- 
 posts till finally the home government makes a sortie and loses 
 all. But there was no conscious striving after independence. 
 It was the specific privileges that were fought for and won, and 
 independence was the outcome only because by the home gov- 
 ernment the specific privileges claimed were deemed incompatible 
 with colonial dependence.
 
 CHAPTER II. COMPROMISE IN THE CHARTER. 
 
 The charter of 1691 is to be observed from two points of 
 view ; first, it was the written constitution of Massachusetts dur- 
 ing the provincial period. After what has become, largely under 
 its influence, a characteristically American fashion, it contained 
 a grant of governmental powers, to be exercised in certain pre- 
 scribed modes, and created a limited system of government, un- 
 able to enlarge its own povv'ers, subject to a superior sovereign 
 body which was then the king in parliament, but could readily 
 be changed in 1780 to the people of Massachusetts. The charter 
 may also be regarded as a summing up of the constitutional 
 struggle, the rigid statement in a document of the compromise 
 now arrived at between royal and popular principles. That this 
 rigidity was only relative the provincial period was to show, with 
 its shif tings of checked and balanced powers. 
 
 The charter was signed October 7, 1691, the result of sev- 
 eral months' negotiation by four agents of the province on the 
 one side, and on the other by the privy council's Committee for 
 Trade and Plantations and Attorney-General Treby. The annul- 
 m.ent of the former charter "by Charles II and the fall of James 
 II and Andres had conditioned the work of the negotiations in 
 two ways ; the independence of the province was done away for 
 good and all, but the experiment of absolutism had proved a 
 failure as well. The committee, having experience of both 
 regimes, was ready now on the basis of the lessons thus learned 
 to establish not what was correct theory, but what was practica- 
 ble. The agents, moreover, had certain vv^ell defined ideals, but 
 were prepared to compromise when necessary. Elisha Cooke and 
 Thomas Oakes, who arrived in England as extra agents in March, 
 1690, having left Massachusetts when the old charter government 
 re-established under Bradstreet was in operation, were firm for the 
 restoration de jure of what had been de facto restored. The other 
 two agents, however. Sir Henry Ashurst, an Englishman, and 
 Rev. Increase Mather, who had left Massachusetts when the 
 Andros 'regime was in full operation, knowing better the condi- 
 tion of opinion in England and the impossibility of a continuance 
 
 (1?.)
 
 14 CONSTITUTIONAL CONFLICT 
 
 of the old system, were ready to take what they could get, using 
 the familiar market-place method of claiming everything, but 
 showing a readiness to yield here and there in order to make good 
 their claim to other points. 
 
 As a first step, early in 1689 Mather used all his "interest" 
 to prevent William's reappointment of Andros to his place held 
 under James, and upon the news of Andros's fall to prevent the 
 appointment of any successor as general governor of New Eng- 
 land. Partly because of the hasty manner in which the old char- 
 ter had been annulled, partly because of the uncertainty as to the 
 attitude of the new Whig monarchy to the colonial policy of 
 James, the matter was left undetermined till Andros and his 
 subordinates should make known their side of the case, and mean- 
 while word was sent by the privy council to those who were ad- 
 ministering the government in Massachusetts to continue in that 
 service until further orders.^ 
 
 In order to a permanent settlement Mather hoped at first for 
 legislative action. The Convention Parliament, in January of 1690, 
 resolved that the abrogation of charters in the last reign was 
 "illegal and a grievance," and passed a bill through the commons 
 for restoring them. But it was overweighted with vindictive 
 propositions displeasing to the king, and was thrown out by the 
 lords. Upon the dissolution the newly elected parliament was too 
 much under the influence of the reaction against Whig revolu- 
 tion to pass the bill. Therefore the application to the legislature 
 was given up. The defense of Andros and his subordinates against 
 the complaint made (though unsigned) by the agents, and the 
 complaint which Andros and Randolph were able to make good 
 good against Massachusetts in the matter of the acts of trade, 
 their religious exclusiveness and the like, produced a strong sen- 
 timent in England against countenancing the revolutionary party 
 in Boston ; and the shower of petitions and counter-petitions in 
 1690, some in favor of the continuance of the conciliar regime, 
 showed that the province was by no means a unit in the desire 
 that the old charter should be restored.^ 
 
 The result of all this was a direct application by the agents to 
 the king, in whose hands the province now rested. The decision 
 
 'August 12, 1689. Quoted in Palfrey, New England, IV. 25. 
 ' Palfrey, IV. 64-7.
 
 IN PROVINCIAL MASSACHUSETTS. I5 
 
 of the courts against the charter was not Hkely to be reversed. 
 ParHament would not restore it. But the king might be prevailed 
 upon to reincorporate his subjects. Accordingly a petition was 
 presented to the king in council with the heads of the charter of 
 the Massachusetts Bay Company and of the proprietary charter 
 to Gorges for the province of Maine (since 1677 the property of 
 the Massachusetts corporation), and the request that their Maj- 
 esties "re-establish their corporation and grant them their laws 
 and former privileges." In addition to what was contained in 
 the old charter new powers were desired; vix., precise authoriza- 
 tion of a representative house, power to tax non-freemen and 
 strangers, power to punish offenders (the right to apply the 
 death penalty being "difficult to make out" of the old charter), 
 admiralty jurisdiction such as had been granted to Gorges for 
 Maine, power to erect probate and chancery courts, to coin 
 money, to settle and raise the militia, and finally a general confir- 
 mation of grants of land, together with the pardon of past irregu- 
 larities. This petition, having been favorably reported on in gen- 
 eral terms by the law officers, was referred to the lords of trade. 
 Later they reported that it was necessary for them to know whether 
 it was the king's pleasure "to have a governor or single repre- 
 sentative of his own appointment from time to time, to give his 
 consent to all laws and acts of government, as in Barbadoes and 
 other Plantations, Or Whether His Majesty will leave the Power 
 of making Laws wholy to the People and officers to be appointed 
 by them." The king declared his pleasure that there be a gov- 
 ernor appointed by himself, and April 30 the privy council or- 
 dered that the lords of trade prepare "the draft of a new charter 
 upon that foundation." 
 
 The work now proceeded expeditiously, Attorney-General 
 Treby putting the draft into legal form in accordance with the 
 determinations of the lords of trade as to policy, holding fre- 
 quent consultations with the Massachusetts agents. Mather 
 especially received many marks of their consideration for his 
 opinion and the province's desires, but on matters important to 
 the prerogative his protests, however earnest, were unavailing. 
 Even the attorney-general's proposals in behalf of the province 
 were in some cases overridden by the lords. For example, the 
 governor's veto upon laws and the appointment of the lieutenant- 
 governor from home were omitted by him until insisted upon
 
 l6 CONSTITUTIONAL CONFLICT 
 
 by thenv. thowgh Ivlather had declared in this very connection that 
 "he would sooner part with his life than consent."^ On July 30 the 
 draft was reported to the privy council and sent to the king (then 
 with the army on the continent) for his approval, and decision 
 as to two chief points objected to by the agents. They desired 
 that judicial as well as other general officers be elected by the 
 general court, not by the governor and council, and that the 
 governor have no veto upon elections to the council. From the 
 king came word, August 20, that he "did by no means approve 
 of the objections," but "did approve of the minutes agreed unto 
 by the Lords of the Committee." On August 27 the agents pre- 
 sented a petition requesting a number of changes in detail, and 
 two were granted ; the "corporal" oath was altered, "that so 
 no snare may be laid before such as scruple swearing on the 
 book;" and a clause was added validating land-titles of the old 
 regime which lacked the public seal. One of the rejected clauses 
 was prophetic of a dispute later to arise. It would have given 
 power to the assembly to constitute agents paid by the province, 
 to "represent their interest at home as well against the governor 
 as otherwise." 
 
 The document thus negotiated constituted the province a 
 body politic and corporate, established a frame of government, 
 and distributed governmental powers among the agents thus cre- 
 ated. This was a century too early for the charter to contain 
 a list of rights which the subject should enjoy because they were 
 his originally and inalienably. Individual liberty was unprovided 
 for, and the liberties of the people were secured rather in the frame 
 of government and in the political means of defence which were 
 granted, than in any enumeration of rights which might not be 
 infringed by government. 
 
 Speaking in general of the frame of government, we must 
 recognize first the continuity between the old and new systems. 
 It is not a case of throwing down one in 1684 and setting up 
 another in 1691. However complete the discretion of the lords 
 of the committee as to the details of the charter, they did not, 
 practically they could not, get away from the fact that the colony 
 had a political past which must be considered the foundation of 
 its future ; that it had evolved a system of government which, 
 
 ' C. Mather, Parentator, 134, in Andros Tracts.
 
 IN PROVINCIAL MASSACHUSETTS. I7 
 
 though it had lost its legal form in 1684, was still present as a 
 hard political fact, and whose ignoring in essentials would cause 
 friction impossible to overcome. Essentially the new charter 
 meant only the re-establishment of the colony government with 
 certain important modifications in the direction of dependence on 
 England. Eighteenth-century Massachusetts was rather a corpor- 
 ate colony modified toward the province type than a province 
 varying toward the colony type. 
 
 But in form the province charter wrought several striking 
 changes. The executive was no longer elective, with power de- 
 rived from the representative general court. The king was to 
 send over a governor, a lieutenant governor and secretary, com- 
 missioned to hold office during his pleasure. The magistrates, 
 constituting both the governor's council and the upper legislative 
 house, had been changed from the assistants, elected by the general 
 court and of practically equal rank and power with the governor, 
 to the council, subject to the governor's veto (a point strenuously 
 resisted by the agents), and distinctly inferior to him in the exec- 
 utive. Its character was thus changed to a minor prerogative body, 
 the leadership of the colony having passed from it to the house. In 
 respect to the house the change wrought by the charter was 
 unimportant practically, but a great gain to the province legally. 
 What had sprung up spontaneously at the demand of the rising 
 spirit of democracy, but with no foundation in the colonial con- 
 stitution, was now given precise authorization, and the powers and 
 privileges of the house, already long exercised and reduced to 
 custom, were now given express recognition and legality. A 
 judicial system should again be set up by the colonial legislature, 
 but the appointment of judges should now be not by the people 
 or the representative body, but by the governor and council. An 
 important step in the reduction of the colony to its proper pro- 
 vincial status was the charter's guaranty of appeal from colonial 
 courts to the king in council, in personal actions of a certain value, 
 a final denial of the colony's long-maintained claim of jurisdic- 
 tional self-sufficiency. The questions were now set at rest which 
 had risen as to the legality of the colonial courts and their right 
 to inflict punishments, such functions having rested hitherto upon 
 an extremely loose construction of a corporation's powers. The 
 powers of legislation and finance were now set on a firm founda- 
 
 2
 
 l8 CONSTITUTIONAL CONFLICT 
 
 tion of constitutional grant. Law was still to be made by the 
 general court, but the participation of the representative house 
 with the assistants was here expressly provided for. On the other 
 hand, the practically absolute power hitherto enjoyed by the gen- 
 eral court was subjected to two very substantial limitations. The 
 governor was no longer a mere presiding officer of the upper house. 
 He received an unqualified veto upon legislative acts of whatever 
 sort, becoming in effect a third house of the legislature. More- 
 over, acts of the general court must be not repugnant to the laws 
 of England, and were made subject to the disallowance of the king 
 in council, a power that might be exercised at any time within 
 three years, and either for the purpose of cutting off unconstitu- 
 tional acts or at the imperial discretion. The power of the purse 
 was expressly given to the general court. Hitherto the right to 
 tax had rested only on the power of the corporation to assess its 
 members, and it might well be questioned whether non-freemen, 
 persons not members of the corporation (a category including 
 probably a very large majority of the inhabitants), were subject 
 to its taxation. The executive function of warranting the issue of 
 money from the treasury was given to the governor and council, 
 but there was a possibility of future dispute in the requirement 
 that this issue be according to acts and rules of the general 
 court, while the legislature will be found using this latter power 
 to acquire a right of appropriation, and hence more and more 
 control over administration. The qualification for the exercise 
 of the suffrage had hitherto been membership in the established 
 Congregational church. This was utterly done away by the char- 
 ter of 1691, and in its place was the requirement of the possession 
 of property, landed or personal. This was the legal expression of 
 what had already become actual, a change of basis in the provin- 
 cial society from church to wealth. It may well be questioned 
 whether the change meant any substantial widening of the suf- 
 frage, but it was significant of the secularizing of Massachusetts, 
 the loss of its peculiar theocratic polity, a step in its assimilation 
 to the normal province. 
 
 For many reasons the charter was to be regarded as a 
 gain to the province, giving legal validity to practices found 
 convenient but hitherto having insecure legal foundation. Never- 
 theless the inclusion of prerogative elements, especially the im- 
 perial governor with his negative upon laws and elections, made
 
 IN PROVINCIAL MASSACHUSETTS. I9 
 
 it seem very far from the desire of the province. Two of the 
 agents, Cooke and Oakes, steadfastly opposed its acceptance 
 while in England. Mather was brought, though with sincere 
 reluctance/ to accept it as the best Massachusetts could hope for 
 from a king more fond of efficiency than of liberty in governments 
 subject to him; and after doing his best to secure its modification 
 according to colonial ideas, accepted the inevitable and endeavored 
 to recommend it to the people of the province. The people them- 
 selves were divided in sentiment, but universally saw that resist- 
 ance was out of the question, and that it was for them to make 
 the most of the privileges that had been granted, in order to 
 win back the substance of powers they had nominally lost. Ac- 
 ceptance was made easier by the first appointments, for they were 
 all made upon Mather's nomination : Governor Phips, a native 
 of Massachusetts, of whose exploits in Nova Scotia she was 
 proud, an intimate and admiring friend of Mather's ; Lieutenant- 
 governor Stoughton and Secretary Addington, men who had 
 been prominent in the old colony government, and whose ap- 
 pointment might be expected to gratify the province and make 
 it think that it was enjoying a considerable degree of self- 
 government under provincial forms ; the council of twenty-eight, 
 with one exception Massachusetts men,- and including all the 
 leading men of the colony except the implacable partisans, Cooke, 
 Oakes, and Danforth, who persistently refused to accept and 
 support the new regime. 
 
 The charter in action v/as the fundamental law of the prov- 
 ince, to which every statute must conform or suffer disallowance 
 from home. But superiority was claimed for it not only over colo- 
 nial acts of government, but over imperial as well. Even a gov- 
 ernor's instruction, however late or peremptory in terms, was 
 understood to have no power to compel the provincial govern- 
 mental bodies, so long as they could base themselves on a charter 
 provision to the contrary. 
 
 Under these conditions, as time passed, the provincial char- 
 ter came to be cherished with something of the reverent regard in 
 which the colonial charter had been held. The threat of its 
 abrogation was a club held over the province throughout the 
 
 ^ Palfrey, IV. 82. 
 
 'Hutchinson, Massachusetts, II. 20, 21, note.
 
 20 CONSTITUTIONAL CONFLICT 
 
 period. From time to time vague intimations were given by the 
 secretary of state or the board of trade that certain misdemean- 
 ors of the province would, if continued, be regarded as "worthy 
 the consideration of the legislature," that is, that parliament would 
 take upon itself the altering of the province constitution. However 
 useful as a threat, such action was improbable and almost im- 
 practicable, and the threat ceased to have weight. The prerog- 
 ative bodies, privy council and board of trade, were jealous of 
 the intrusion of parliament into their peculiar field of colonial 
 affairs, and would therefore be very reluctant to call in its aid 
 except as a last resort. Moreover, competing statesmen, who 
 as secretaries of state or opposition leaders would have the respon- 
 sibility of dealing with the colonies as a party issue, were very 
 reluctant to introduce a matter of such delicacy, which might 
 overturn the balance of parties in unexpected ways. So Walpole 
 in 1729 would be very slow to accede to Newcastle's desire of 
 parliamentary action to settle the salary controversy, lest the issue 
 be made use of for party purposes by his rival. 
 
 In 1725 an Explanatory Charter was granted upon the rec- 
 ommendation of the board of trade. Shute's quarrel with the 
 house had revealed two points upon which the charter was am- 
 biguous and upon which the home government was now ready to 
 declare its mind : the governor's right to veto the election of 
 speaker of the house and his right to control the adjournment of 
 the general court. The charter was accepted by the court in for- 
 mal resolve,^ but such action was wholly unnecessary for its 
 validity, and only meant the asquiescence of the province in the 
 inevitable, glad to get off with so easy a punishment for its mis- 
 deeds. 
 
 Such then was the constitution of Massachusetts, legally a 
 grant of governmental powers by the king out of his preroga- 
 tive, but in the view of the province partaking largely of the nature 
 of a direct constitutional compact between the king and the peo- 
 ple of Massachusetts. The people owed allegiance to the king, 
 and would remain his loyal subjects (under their own colonial leg- 
 islature and local self-government) so long as his part of the com- 
 pact was fulfilled, viz., the protection of the people and the preser- 
 vation to them of their liberties as Englishmen. It was the attempt 
 
 ^ 1725-26, c. 467, Acts and Resolves of the Province of Massachu- 
 setts Bay, X. 738.
 
 IN PROVINCIAL MASSACHUSETTS. 21 
 
 to ignore this direct constitutional relation between king and 
 Massachusetts people, the attempt to reduce Massachusetts to the 
 condition of a mere dependency, the exercise of the sovereign 
 power of the British parliament to break the Massachusetts char- 
 ter in 1774, that brought on a revolution. Massachusetts took up 
 arms in 1775, not to win new powers, but to resist the encroach- 
 ments of parliament upon what the province had come to regard as 
 her constitution, and the system to which she resorted in the in- 
 terregnum of war, the constitution which she set up in revolution 
 to fight for and defend was the system set forth in the charter 
 of iC"-i.
 
 CHAPTER III. THE PREROGATIVE BODIES. 
 
 The provincial governor must be viewed in his twofold ca- 
 pacity of head of the province and agent of the home govern- 
 ment. Under the old charter the governor had derived all his 
 power from the colony, and had bestowed practically all his efforts 
 upon the service of its interests. The home government had then 
 lacked an efficient agent for the execution of its will, and the 
 purpose of curing this defect had been the chief reason for the 
 changing of the system, from the old charter to the new ; hence 
 the character of the new governor's office is especially worthy 
 of study. 
 
 But these tvv'o differing, and sometimes opposed, aspects of 
 the governor's office will not be studied separately. Rather, they 
 must be borne in mind together as constant conditions of the 
 problem, while the governorship is studied as an institution of 
 government, in its own make-up and in its relation with other 
 institutions. Occasions arose when the governor as head of 
 the province had a different motive and policy from the gov- 
 ernor as agent of the home government, when the interests of 
 colony and empire apparently clashed. For the outcome of this 
 conflict it must be observed at once that, while in form and func- 
 tions the governor appeared primarily as the head of the province, 
 yet by reason of the source of his power and the means by which 
 he was controlled he was primarily the agent of the empire. Gov- 
 ernmental authority for the province was derived through his com- 
 mission from the king and hence he became the proximate source 
 of all that made for the prerogative interest in the province, 
 both official and political, the source of office and the nucleating 
 center of the prerogative party. From yet another point of view, 
 he was the king's representative, his viceroy, standing presump- 
 tively above parties for the unity of the province in its imperial 
 relations. 
 
 The most striking change from the old system to the new 
 was the mode of appointment of the governor. No longer sub- 
 ject to annual election by the people whom he was to govern, 
 he depended upon the commission of the king, continued during 
 
 (22)
 
 IN PROVINCIAL MASSACHUSETTS. 23 
 
 pleasure. He must have constant regard to the interests of a 
 power outside the province, which had made and might unmake 
 him. The oaths by which he was bound were framed accord- 
 ingly. Besides the oath of office, he must take those of allegiance 
 and supremacy, binding him to the Protestant succession in 
 England, and yet another, relating to the enforcement of the 
 acts of parliament touching the colonies, especially the acts of 
 navigation and trade. ^ 
 
 Besides the formal grant of power through the commission, 
 the governor received instructions^ as to its use, which were pre- 
 pared by the board of trade and authorized by the privy council. 
 At each appointment a full set of instructions was issued, a quasi- 
 constitution, defining the limits within which the prerogative 
 might not be encroached upon, outlining the policy which the 
 home government desired the governor to pursue upon matters 
 in controversy. These instructions did not vary much between 
 administrations, except that they showed a constant tendency to 
 grow in number and definiteness.^ Additional instructions were 
 issued as occasion arose, prescribing the governor's course of 
 action upon special matters either of imperial administration or 
 of colonial legislation. The instructions were regarded as of 
 force only between the two parties giving and receiving, the 
 home government and its agent. The governor might be in- 
 structed to insist upon the assembly's establishing a salary, but 
 the assembly was regarded as within its rights in refusing, how- 
 ever much the governor might expostulate against their presump- 
 tion in refusing the king's express wish. As to the governor's 
 own obedience, it rested largely with his official conscience. Of 
 neglect in an important matter he was likely to be admonished 
 
 ' Greene, Provincial Governor, 55, 68. 
 
 ' Greene, 93-96. 
 
 ^ Phips received 36, Bellomont 44, Dudley 73, Burgess 78, etc. A 
 collection of the commissions and instructions to Massachusetts gov- 
 ernors is being prepared for publication by the Colonial Society of Massa- 
 chusetts. By the kindness of Mr. Henry H. Edes, Treasurer of the 
 Society, the writer has had the opportunity of examining the printer's 
 copy, and it is to this forthcoming v/ork, which will constitute Volume 
 II of the Society's Publications, that reference must be made for that 
 whole body of sources, not hitherto in print, with the single exception 
 of Dudley's instructions, in Mass. Hist. Soc. Collections, Series 3, Volume 
 IX.
 
 24 CONSTITUTIONAL CONFLICT 
 
 by the secretary of state or the board of trade, but the only means 
 of compelHng obedience was a threat of recall and of the loss of 
 royal favor, a force which was sufficient to determine in general 
 the policy of the ambitious appointee, but which necessarily 
 allowed him considerable uncontrolled freedom of obedience or 
 disobedience in less important matters. 
 
 More informally, the will of the home government was com- 
 municated to the governor through the letters of the secretary 
 of state and board of trade. He was instructed to keep them 
 minutely informed of all that concerned the execution of his 
 commission, the purpose of the colonial legislation sent home for 
 approval, and his opinion as to its fitness for royal confirmation. 
 The volume and usefulness of this correspondence varied with 
 the personality of the incumbent. Bellomont was an indefatiga- 
 ble man of business, and his letters were numerous and full of 
 information. Shute, at the other extreme, was much complained 
 of for his neglect of correspondence, leaving important acts of 
 government, the home authorities complained, to be reported to 
 them by the public prints,^ and sending letters only at long in- 
 tervals. Belcher's letters were numerous and long, but unsatis- 
 factory for administrative purposes, being filled principally with 
 jealous strictures on fellow officials and with the urging of his 
 own claims to royal favor. - 
 
 Theoretically the governor, as an expert on colonial condi- 
 tions, and the board of trade, with its wider view of imperial in- 
 terests and its information on conditions in other colonies, were, 
 through intimate and frequent correspondence, to concert and 
 execute a policy which was adapted to the service of both colony 
 and empire, to secure a degree of unity among the members of the 
 latter, and of uniformity in their procedures. Only in a slight 
 measure was this end attained, for there were great difficulties in 
 the way of a complete understanding. The lack of a system for 
 training officials for colonial service at home and abroad, and the 
 thorough grip of the spoils principle on the system of appointment, 
 made the personnel unsatisfactory in point of efficiency. The dim- 
 inishing influence and significance of the board of trade, and the 
 official ignorance and carelessness in reference to colonial aflfairs, 
 exemplified in the Duke of Newcastle as secretary of state, were 
 
 ^ Chalmers, Revolt of the Colonies, II. 26. 
 
 ^ Many are printed in Mass. Hist. Soc. Collections, Series 6, Vol. VI.
 
 IN PROVINCIAL MASSACHUSETTS. 25 
 
 combined with the physical obstacles to communication arising 
 from great distance and irregular despatch service, to make im- 
 perial control of the empire's servant in the colony less and less 
 efficient. The result was a growing predominance in the gov- 
 ernor of what was designed to be his minor characteristic, 
 that of servant of the province. The tightening of the reins 
 during and after Halifax's administration of colonial affairs came 
 too late to counteract this tendency, and it is not without signifi- 
 cance that the time of this change is very nearly coincident with 
 that of more energetic colonial resistance to dictation from Eng- 
 land, which led shortly to the Revolution. 
 
 The governor had important relations with legislation and 
 with the administration of justice, as well as the executive 
 duties that were more peculiarly characteristic of the office. 
 His right to convene, adjourn, and dissolve the general court 
 occasioned disputes with the house, which are more conven- 
 iently treated in the following chapter. But the governor 
 also had positive influence on legislation, both direct and indi- 
 rect. He was accustomed to send messages to the house on 
 all manner of occasions, urging legislation upon specific mat- 
 ters, showing particulars in pending legislation to which he 
 should refuse consent. Moreover, at the beginning of each 
 session and on other important occasions he would summon 
 the house to the council chamber and make an address to the 
 joint assembly, summarizing the military situation if it were a 
 time of war, imparting information, especially letters from the 
 hom.e government or other colonies, recommending certain mat- 
 ters for their consideration, (frequently the "low" condition of 
 the treasury, or the "distressing" state of the currency), with a 
 view to legislation. — as it were a speech from the throne. These 
 speeches were at first informal. For example, Stoughton on one 
 occasion directed the attendance of the house in the council cham- 
 ber and recommended to their consideration the "public state of 
 the province," touching the war, the lack of money in the treas- 
 ury, the expiration of certain acts which should be continued.^ 
 After Bellomont's arrival the procedure became more formal ; 
 the governor gave his speech in writing to the house after deliv- 
 
 ' Court Records, VI. 450. This is the name used to designate the 
 manuscript records of the council, when acting in its legislative capacity.
 
 26 CONSTITUTIONAL CONFLICT 
 
 ery, and received their formal answer.^ Its influence on their 
 action was little more than that of a president's message of the 
 present day to a Congress having an opposition majority. On 
 party issues his recommendations were ignored, on other matters 
 an insistent public opinion could obtain concurrent action by 
 governor and house. 
 
 The governor's indirect influence on legislation was prob- 
 ably considerable, varying with his personality. He presided in 
 council in both legislative and executive sessions, and his proper 
 constitutional domination in the council, when sitting in its exec- 
 utive capacity, must have given his opinions great weight with 
 the same body when legislating. Bellomont and Dudley assumed 
 a position of leadership in the council's legislative deliberations ; 
 Bellomont concerning himself in debates, proposing bills and other 
 business, preventing their action in his absence except as a com- 
 mittee of the whole ; Dudley forcing business to suit himself and 
 dominating men of weaker will.- This right of interference in 
 council was claimed and exercised by the governors throughout 
 the provincial period, notwithstanding an adverse opinion deliv- 
 ered by the law officers of the crown."^ 
 
 By charter an absolute veto was conferred upon the gov- 
 ernor, upon all acts of the general court, whether legislative or 
 elective. Hence we may regard him as not only influencing the 
 upper house, but as constituting by himself a third house of the 
 legislature. The use of this veto was not sparing, but was infre- 
 quent because unnecessary. Non-concurrence by council, under 
 the governor's influence, of objectionable measures of the house, 
 sifted legislation very thoroughly, and the resulting number of 
 actual refusals of consent is surprisingly small, considering the 
 frequent differences of opinion. There was a considerable body 
 of possible legislation to which the board of trade instructed the 
 governor to refuse his consent, and the expectation of that veto 
 undoubtedly prevented the useless passage of repugnant meas- 
 ures.* The time during which the governor might consider bills 
 was not fixed in the charter or instructions. As the veto was 
 not a suspensive one, to be overridden by an extraordinary major- 
 
 ' E. g., Feb. 14, 1701. Court Records, VII. 144. 
 
 " Sewall's Diary, 5 Mass. Hist. Soc. Collections. VII. 47. 
 
 ' Chalmers. Opinions, 238. 
 
 *E. g.. Court Records, VII. 415.
 
 IN PROVINCIAL MASSACHUSETTS. 2/ 
 
 ity, the importance of the time of the veto appears in the possi- 
 bility that the house could compel the attachment of his signature 
 to favorite measures by withholding his allowance. They were 
 accustomed to put off the consideration of such allowance until 
 the last day or two of the session, when presumably the leg- 
 islative and elective acts of the assembly had been completed 
 by the governor's signature, which was usually afifixed shortly 
 after the concurrence by the council. The house tried to 
 establish the principle that signatures should always precede 
 allowance, but vigorous protest was made by the governor, with 
 final success. In the salary settlement of 1735 it was agreed that 
 his allowance should be granted at the beginning of the session. 
 As Greene has pointed out for the provinces in general,^ 
 the powers of the governor which brought him into connection 
 with the judiciary, were of three sorts. By the charter he was 
 to constitute courts of justice, and to appoint judges, while 
 by statute he was given some judicial functions to perform. 
 But as to the extent of these powers Massachusetts differed 
 from other provinces. The power to erect courts was exercised 
 by the general court, which by a series of statutes- (after 
 repeated disallowance and modified repassage) established a 
 system of common law courts, and in this establishment the 
 governor participated merely as one branch of the legislature. A 
 chancery court, however, being peculiarly for the exercise of the 
 king's super judicial prerogative, was not allowed to be set up 
 by the colonial legislature. Several attempts were made to give 
 equity jurisdiction to the governor (or chancellor appointed by 
 the governor) and eight of the council,^ later to three commis- 
 sioners appointed by the governor and council ;■* but these acts 
 were disallowed, Attorney-general Northey being of opinion that 
 the queen could set up an equity court in Massachusetts, but the 
 general court could not do so by the terms of the charter.^ Phobate 
 jurisdiction, on appeal from the county probate judges, was given 
 by statute** to the governor and council. Further statutory juris- 
 
 ^ Greene, Provincial Govei-nor, Chapter VII. 
 
 'Act 1692-3, c. 33; 1697, c. 9; 1699-0, cc. 1, 2, 3, 4; 1701-2, cc. 5, 6, 7. 
 
 'Act 1692-3, c. 33, § 14. 
 
 'Act 1693-4, c. 12. 
 
 ° Chalmers, Opinions, 195. 
 
 "Act 1696, c. 8.
 
 28 CONSTITUTIONAL CONFLICT 
 
 diction of the same body was over cases of marriage and divorce/ 
 cases of embezzlement by regimental officers, with power to im- 
 pose fines and to imprison,- and cases of creditors' petitions, with 
 power to issue commissions of bankruptcy.^ Admiralty jurisdic- 
 tion was supervised by the governor through his special commis- 
 sion as vice-admiral, though after 1702 the vice-admiralty court 
 was held by a judge appointed by the crown. 
 
 But the appointing and commissioning of judicial officers 
 was the chief function which brought the governor into connec- 
 tion with judicial affairs. Here, as in most of his executive 
 functions, he was controlled by the advice and consent of the 
 council. It was the settled policy of the home government that 
 judicial offices in the colonies should be held not on good be- 
 havior but during pleasure.'* Tenure of office was generally 
 permanent, removals being very rare. As all commissions be- 
 came inoperative upon a demise of the crown, and as it not 
 infrequently happened that the new sovereign sent a new gov- 
 ernor, there was considerable opportunity for executive policy 
 to impress itself upon the judiciary by appointment, without the 
 abuse of arbitrary removals. Belcher was the only governor 
 with a bad name on this account. He maintained that the change 
 of governor had the same eft'ect in terminating commissions as 
 the change of sovereigns, and took the opportunity to make 
 sweeping changes in the personnel of the judiciary to serve his 
 own purposes, but this example was not followed by later gov- 
 ernors.^ 
 
 But the most characteristic functions of the governor were 
 executive. Besides his duty in general to see to the enforcement 
 of the law, all governmental matters which were not regulated 
 by legislation were for the governor and council to attend to. 
 The description of this field was accomplished mostly in the char- 
 ter, by the withdrawal of certain things from the competence of 
 the legislature, to an extent also through the delegation of func- 
 
 'Act 1692-3, c. 25. 
 "Act 1701-2, c. 14. 
 'Act 1713-4, c. 14. 
 * Greene, Provincial Governor, 134-6. 
 
 " Shirley attempted it, but readily gave up the point upon the refusal 
 of the council to join. Hutchinson, II. 336, note.
 
 IN PROVINCIAL MASSACHUSETTS. 29 
 
 tions by the legislature, and also by the imposition of duties 
 from without. The provincial period saw the legislature grad- 
 ually encroaching upon this field, attempting either to transfer 
 a function from the governor to itself, or to control him in its 
 exercise. 
 
 The administrative powers of the governor were of the sort 
 which was customary in that office.^ The appointment of civil 
 officers by the executive was far less extensive in Massachusetts 
 than in other provinces, however, for the charter secured to the 
 general court the right to select ail except those pertaining to 
 the courts,^ an exception which the legislature confined as nar- 
 rowly as possible, as the following chapter will show. But even 
 when thus limited, the exercise of the appointing power seemed 
 likely at first to fall into the hands of the council, the popular 
 part of the executive. Under Phips^ and Stoughton the council 
 assumed the right to elect even the above mentioned judicial 
 officers, leaving to the governor only the right of confirmation 
 or refusal. With the coming of Bellomont, however, this error 
 was corrected and the initiative was reassumed by the governor."* 
 Bellomont and all subsequent governors named the officers, and 
 the function of the council was reduced to the evident intention 
 of the charter, mere acceptance or rejection. 
 
 One of the chief sources of the governor's power in admin- 
 istration, as described in the charter, was his right to order the 
 issue of money from the treasury. The claim of the house to a 
 primal and superior control over the issue of warrants is so 
 important for the constitutional relations of governor and house 
 that a separate chapter is devoted to its discussion. 
 
 By statute, miscellaneous administrative functions were be- 
 stowed upon the governor, to be exercised with the advice and 
 consent of the council, principally in the form of licensing the 
 performance of certain acts which needed administrative con- 
 trol, e. g., the erection of wooden buildings within the Boston 
 
 ^ Greene, Chapter VI. 
 
 " "Judges Commissioners of Oyer and Terminer Sheriffs Provosts 
 Marshalls Justices of the Peace and other Officers to Our Councill and 
 Courts of Justice belonging." Acts and Resolves, I. 12. 
 
 ^ Executive Council Records, II. 206. 
 
 * Executive Council Records, III. 41.
 
 30 CONSTITUTIONAL CONFLICT 
 
 fire limits/ the carrying on of trade with the Eastern Indians,- 
 the removal of inhabitants from the frontier towns in time of 
 war.'' The court was also inclined, especially in the early part 
 of the period, to use the governor and council for other pur- 
 poses, such as the appointment of impost commissioners,* and 
 truck-masters for the Indian trade,'^ but it later preferred to 
 perform such functions directly. 
 
 The issuance of ordinances, a quasi-legislative power, was 
 necessarily in the hands of the governor and council, to be used 
 in cases of emergency, as supplementary to legislation by the 
 general court. It was also used by special grant in advance by 
 the court, but very slightly, and less and less as time went on. 
 The court was inclined to do by itself all the legislating that 
 needed to be done, leaving as little as possible to the dreaded 
 executive. The right to issue proclamations belonged, of course, 
 to the executive, but it was a question how far the exercise of 
 that power could be controlled by the court. Fasts and thanks- 
 givings were proclaimed by the governor by the advice and con- 
 sent of the council, usually at the express desire of the house. 
 Indeed, during the first eight years such days were set apart by 
 regular legislative resolve, originated by the house, concurred in 
 by the council, consented to by the governor. But after 1701 
 this irregularity was avoided until 1721, when, in the midst of 
 the controversy with Shute, the representatives (March 16) or- 
 dered a committee to join with a committee of the council in 
 preparing a proclamation for a fast day. The council, in its 
 legislative capacity, non-concurred, and declared that such par- 
 ticipation by the house was contrary to precedent. In its exec- 
 utive capacity the board had prepared a proclamation which it 
 declared, "will be communicated to the House." But the repre- 
 sentatives insisted on actively participating, saying "that if 
 appointment of such days has not the sanction of the Court, 
 persons are not liable to be punished if they work or travell 
 thereon, which will tend to a great disorder."" The council 
 
 'Act 1692-3, c. 13. 
 
 'Act 1713-4, c. 13. 
 
 " Act 1694-5, c. 25. 
 
 *Act 1692-3, c. 5. 
 
 ' Act 1699, c. 13. 
 
 'Court Records, XI. 115.
 
 IN PROVINCIAL MASSACHUSETTS. 3I 
 
 again supported its position by argument, and announced that 
 the governor, with the advice of the council "and at the instance 
 of the House," had ordered proclamation of a fast. The house 
 protested that it had "made no such instance, but voted a com- 
 mittee, to join with a committee of the Honorable Board to pre- 
 pare the draft of such a proclamation." But in spite of this 
 protest the proclamation was issued as an executive act. In June 
 of the same year the house voted that "13 July be appointed as 
 a day" of fasting, "and that His Excellency be desired to issue 
 out a proclamation accordingly," an evidence that the house had 
 given up its claim. The assumption of the house figured in Shute's 
 complaints to the home government, and the law officers of the 
 crown, as might have been expected, declared that the house had 
 no right to participate in the governor's function of issuing 
 proclamations. 
 
 Together with these miscellaneous administrative duties of 
 the governor as executive head of the province may be mentioned 
 a few that came to him as the imperial agent. He was instructed 
 to urge certain matters of policy upon the assembly, acting, as 
 it were, in the capacity of imperial adviser in legislation. He was 
 also made responsible in a general way for the execution in his 
 colony of the parliamentary acts of trade and navigation. Be- 
 ginning with the administration of Bellomont, he was instructed 
 that forfeiture of office and other marks of the king's displeasure 
 would be the consequence of failure to observe these acts, so 
 far as was due to his wilful fault or neglect. All officers of the 
 admiralty and customs therefore were to receive from him due 
 encouragement.^ He was to watch over the king's interest in 
 forest trees that were fit for masting the royal navy.^ Other 
 instructions^ requiring him to transmit a census of planters, of 
 inhabitants, slaves, etc., and a yearly account of their increase 
 and of the number fit to bear arms, together with a particular 
 account of the defences of the province, illustrate the function of 
 the governor as the home government's general source of infor- 
 mation. 
 
 The governor was military head of the province. It was 
 by him that militia officers were appointed and commissioned, 
 
 ^Bellomont's 43d instruction. 
 
 ' Bellomont's additional instruction of Jan. 19, 1700-1. 
 
 ' Dudley's 39th and 60th instructions.
 
 32 CONSTITUTIONAL CONFLICT 
 
 and the militia commanded. In time of war, with a regular 
 military force in existence, whether raised by impressment of 
 militia or by voluntary enlistment, the governor was commander- 
 in-chief, with power to build fortifications, to impress men and 
 ships and other property, to administer military law by com- 
 missioning courts martial, and, most important, to direct mili- 
 tary operations. Here he was free from the control of the coun- 
 cil, except as to the commissioning of courts martial. In all 
 these matters, how-ever, his nominal legal freedom of discretion 
 was subject to qualifications. How far the need of money to 
 carry on military operations necessitated co-operation of the tax- 
 granting body, and consequently subjected him to its dictation, 
 is so large a matter as to require treatment in a special chap- 
 ter. The navy of the province was a very slight affair, usually 
 no more than a galley or snow, but it also was under the gov- 
 ernor's command, as was the royal war-ship stationed at Boston, 
 though the subordination was not clearly recognized in the latter 
 case, and friction easily resulted, as in the case of Phips and 
 Captain Short of the Rose frigate.^ 
 
 Charged with these various functions, legislative, judicial, 
 administrative and military, the governor was subject to limita- 
 tions and checks from various quarters. In practically all his 
 functions which were not military, the governor's action required 
 the advice and consent of the council, a body in whose consti- 
 tution popular election played a large part. By his veto the gov- 
 ernor could exclude therefrom men who were personally or polit- 
 ically obnoxious, but having no initiative in its appointment he 
 could not secure the aid of men whom he desired, if they were 
 displeasing to the house. Naturally the council tended to be- 
 come a colorless body, without positive influence on the governor's 
 action, but providing a conservative force which would keep him 
 from unpopular extremes. 
 
 The chief positive force which acted on the governor w^as the 
 home government, on which he depended for appointment and 
 continuance in office. Through his commissions and instructions 
 and the more informal communications of the secretary of state 
 and the board of trade he was constantly in receipt of their sug- 
 gestions and commands, positive and negative. The chief nega- 
 
 ' Palfrey, IV. 147.
 
 IN PROVINCIAL MASSACHUSETTS. 33 
 
 tive force which operated on the governor, so as to Hmit his 
 opportunity and capacity to follow the positive pressure from 
 home was the house. As will be seen in chapters V, VI, and 
 VII, the hold of the house upon the province purse-string meant 
 that in divers ways they were able to win a considerable measure 
 of control over his action in the performance of his peculiar 
 functions, legislative and financial, and even administrative and 
 military. The governor's actual course of conduct was the result- 
 ant of all these forces, positive and negative, and varied with the 
 degree of pressure applied from home or from the house. 
 
 The governor's personal character also was of influence in 
 determining the strength of resistance or of co-operative force 
 he could offer against outside pressure. The situation demanded 
 an almost impossible combination of qualities. In the first place, 
 under the spoils system of appointment, a certain amount of "inter- 
 est" with the great ones about the court must be possessed by an 
 individual before he could be considered as a candidate for the gov- 
 ernorship. This was likely to mean either that he was an ex-soldier 
 whose services could thus be rewarded in a cheap currency, like 
 Phips or Burgess or Shute, — and here there was little likelihood 
 of his possessing the qualities of a successful administrator ; or 
 that he was a courtier, skilled in the arts of flattery and self- 
 promotion, perhaps with political morals not stern, but easily 
 adaptable, like Belcher, and in a less degree Dudley. Massa- 
 chusetts, however, suffered far less than other provinces from the 
 spoils system. Not a single one of her governors played the role of 
 a plundering proconsul to her pecuniary loss, and her two ex- 
 soldiers, Phips and Shute,^ were faithful to their duty, accord- 
 ing to their blundering comprehension of it. Belcher and Dud- 
 ley were self-seeking in their ambitions, but both were Massa- 
 chusetts men, and tried to serve themselves through serving, not 
 "disserving," the province. 
 
 Two qualities must be sought among those who had suffi- 
 cient "interest" to be regarded as candidates, — efficiency and 
 amiability. The governor should be an able man, to conduct the 
 administrative and military affairs of the province successfully, 
 to keep the province true to its allegiance and dependence on the 
 
 ^ Burgess soon after appointment sold his commission for a thousand 
 pounds, and never came to Massachusetts. 
 3
 
 34 CONSTITUTIONAL CONFLICT 
 
 crown, and turn Massachusetts to some account to England in 
 trade or as a producer of raw materials for her manufacture; and 
 he must be resolute to thwart the attempts of the house to en- 
 croach on the prerogative, preserving the dual nature of the gov- 
 ernment, with the governor as a branch co-ordinate with the 
 house. But at the .same time he should be personally or politically 
 agreeable to the province, in order that their willing co-operation 
 might be secured in defence, that their natural tendency to en- 
 croach on the ofifice might be checked by personal regard or re- 
 spect for the incumbent, that something positive might be ob- 
 tained from them in legislation, in conformity with imperial 
 desires of uniformity and efficiency in administration among the 
 various provinces. Four of the ten men appointed governor were 
 natives of the province — Phips, Dudley, Belcher and Hutchinson 
 — and Shirley had identified himself with it by a residence of ten 
 years. Including his term and the time that lieutenant-govern- 
 ors were acting governors, the province was under the command 
 of a Massachusetts man about sixty out of the eighty-two years of 
 the period. True, the politics and not the nativity of the gov- 
 ernor was the essential thing, and the native-born governors en- 
 countered more hostility on the average than the foreign, their 
 prerogative principles adding an element of grieved disappoint- 
 ment to the popular dislike of the governor qua governor. But 
 still the appointment of a native was a sign that the home govern- 
 ment desired to secure able service by men who presumably would 
 know the conditions and have at heart the real interests of the 
 province, upon the understanding that the real interests of the 
 province required its close dependence upon England. 
 
 Of the Englishmen sent over, Bellomont was a liberal, who 
 took the popular side in the Leisler controversy in New York ; 
 and while in Massachusetts he identified himself with the Puritan 
 party. ^ Moreover, his social position flattered the province's 
 sense of importance. Shute was a Dissenter, brother of Lord 
 Barrington, and therefore acceptable to the province, as was Bur- 
 net for being son of the famous bishop. 
 
 The degree of efficiency secured in the Massachusetts gov- 
 ernors was at least as great as was the average among the prov- 
 inces. Bellomont and Shirley were distinct successes, and without 
 
 'Hutchinson, II. 106-7.
 
 IN PROVINCIAL MASSACHUSETTS. 35 
 
 doubt Burnet would have given the province an administration sat- 
 isfactory to all concerned had he not been forced by the circum- 
 stances of precisely that time to come to a deadlock with the 
 general court on the salary question. Each one of these three 
 had previous administrative experience, Bellomont at home and 
 in New York, Burnet in New York, Shirley as naval officer in 
 Boston. Dudley, as former ally of Andros and as supporter of the 
 prerogative his father would have opposed, was disagreeable to 
 the people, and utterly failed in two or three policies which he 
 urged the court to accept ; but he made an excellent reputation 
 in civil and military administration. He had served as president 
 of the Council of New England in 1686, as chief justice in New 
 York, and later as lieutenant-governor of the Isle of Wight ; but 
 apparently he always held before his eyes the governorship of his 
 native Massachusetts as the position which he most desired. 
 Belcher's "servile and flattering tone to those above him . 
 his arbitrary manner to those under him,"^ both used for the 
 purpose of winning for himself place and power, had no good 
 results for the province or for the empire ; therefore he can 
 hardly be called a success, especially considering his willing- 
 ness to compromise the salary question, which during his ad- 
 ministration was settled adversely to the contention of the home 
 government ; nevertheless he did win a victory for the prerogative 
 upon the claim of the house absolutely to control issues from the 
 treasury. Phips, by reason of ignorance and lack of self-control, 
 and Shute, for lack of tact and patience and resolution, must both 
 be accounted failures, though in neither case was there lack of 
 good intention to serve the empire and incidentally the province. 
 Shute was unfortunate in winning the cordial enmity of Elisha 
 Cooke, for several years the unquestioned leader of the popular 
 party ; thus, in his case, a personal spite was added to the political 
 struggle, . and Shute's administration saw nearly all the consti- 
 tutional disputes raised and intermingled, and little progress made 
 in settling or disentangling them. The ill-success of Pownall and 
 Bernard in dealing with the questions which arose in their admin- 
 istrations belongs rather to revolutionary history than to this 
 study of the province ; and Hutchinson also, while admirably 
 equipped for the position as administrator, came at a time wher) 
 
 ^ C. C. Smith, in 6 Mass. Hist. Soc. Collections, VI. xxii.
 
 36 CONSTITUTIONAL CONFLICT 
 
 the peaceful adjustment of differences was no longer possible, and 
 when the situation demanded a man of force. 
 
 The governor's council may properly be described among 
 prerogative bodies, though its attitude was somewhat variable, 
 as will be seen in the accounts of the salary and treasury con- 
 troversies. It sat at times as a legislative body, combining with 
 the house and governor to form the general court ; at other times 
 as an executive body, advising and consenting to the governor's 
 executive acts. But what made it a peculiar institution was its 
 elective character. Not appointed by the king on nomination by 
 the governors, as in most provinces, the council in Massachusetts 
 was constituted through annual election by the general court ; this 
 as all other acts of that body being subject to the governor's veto. 
 The election was by joint ballot held on the last Wednesday in 
 May, by a court composed of the council of the past year and the 
 newly elected house. The procedure in the election was regulated 
 by province law. The charter of 1691 named the council for the 
 first year, Mather having the privilege of making out the list ; but 
 thereafter by charter provision eighteen of the twenty-eight mem- 
 bers were to be inhabitants or proprietors of land in what had been 
 the Massachusetts Bay Colony, four in the old Plymouth Colony, 
 three in what had been the Province of Maine, and one in the ter- 
 ritory called Sagadahoc, to the east of the Kennebec river. The 
 remaining two were elected "at large," usually from the old Bay 
 Colony. The election was at first from a double list, nominated ap- 
 parently by informal ballot ;^ but from Sewall's reference to the 
 election of 1695 — "voted but for eighteen at first"^ — it would ap- 
 pear that nomination of a double list was soon dispensed with. 
 This was natural, considering that the election was usually a 
 mere re-election of the former council, and a double list would be 
 inconvenient and useless. An attempt by the house in 1703 to 
 require a majority vote for every councillor, was thwarted by 
 Ducjley's veto. The governor's power of vetoing councillors- 
 elect was used but sparingly. Only one was rejected during the 
 first ten years. Dudley, it is true, at his first opportunity in 1703, 
 rejected five, and at other times evidenced in this way the opinion 
 
 * Acts and Resolves, VII. 15. 
 ' Sewall's Diary, I. 406.
 
 IN PROVINCIAL MASSACHUSETTS. 37 
 
 which he expressed in a letter home, September 15, 1705 : "It is 
 every day more apparent that nothing will proceed well here till 
 her Majesty will please to name her own council, the best men 
 in the province can have no share in the civil government till 
 then."^ But in all the first forty years of the provincial period 
 there were only twenty-four cases of veto on council election, 
 and five of these were on Elisha Cooke and six on Nathaniel 
 Byfield on various occasions. These men were repeatedly chosen 
 by the assembly and rejected by the governor, for what was from 
 one point of view patriotic opposition, from the other factious 
 obstruction. 
 
 If the governor could veto a patriot, the succeeding house 
 could drop a prerogative man ; yet the house was very moderate in 
 its exercise of this political control. For example, after the stub- 
 born contest between the two houses on the salary question, 
 the house dropped only four of the preceding council, which was 
 no great change in a body numbering twenty-eight. Yet this was 
 the most striking case until the revolutionary time. 
 
 The influences of the governor and house would combine to 
 keep in the council men of moderate opinions and to exclude ex- 
 tremists. Inevitably this moderation, which enabled one to keep 
 in office betvv'een the two fires, must have degenerated in some 
 cases into insignificance. Yet on the whole this body contained 
 a good proportion of the substantial men of the province, men 
 whose wealth and powers of judgment gave them weight in the 
 community. The council became the conservative body, the 
 bufiFer between the contending governor and house. Unless 
 special offence was given to the one or the other, the councillor 
 was fairly sure of a permanent tenure of office. Emoluments 
 were inconsiderable. The five shillings a day,^ (after 1726, ten 
 shillings),^ was only paid during the session of the general court; 
 the councillor's executive services were unpaid. But he enjoyed 
 exemption from certain burdens of private citizens, such as the 
 poll tax,* and training.'^ 
 
 'Palfrey,' IV. 255. 
 
 = Acts and Resolve?, I. 100. 
 
 ^Ibid, II. 406. 
 
 'Act 1692-3, c. 4. 
 
 'Act 1693-4, c. 3. § 12.
 
 38 CONSTITUTIONAL CONFLICT 
 
 Membership in the council was not regarded as incompatible 
 with the holding of judicial or executive office. Not to speak of 
 military officers, of whom there were always several in the council, 
 special commissioners for various executive purposes — commis- 
 sary, diplomatic, and financial — were frequently members of the 
 council; also many of the judges of the superior and inferior 
 courts. The governor was always present in council meetings, 
 both executive and legislative. It was a question whether the other 
 two crown officers — lieutenant-governor and secretary — were 
 not ex officio members of the council and entitled to vote. Hutch- 
 inson^ cites a minute- of the board of trade, adopted just before 
 the charter passed the seals, to prove that such was the intention 
 of the home government. Such also was the practice in the old 
 regime before 1686. Accordingly, during the first year of the 
 charter Lieutenant-governor Stoughton sat and voted in council, 
 though not named a councillor. But in 1693 the assembly chose 
 to prepare for the possible exclusion of future lieutenant-govern- 
 ors or secretaries who might be obnoxious, and proceeded to elect 
 the then incumbents of those offices to the council. Accordingly, 
 it was supposed to be by virtue of their election and not ex officio 
 that Stoughton and Addington long served in council. Stough- 
 ton's successors — Povey, Tailer, and Dummer — were accus- 
 tomed to attend the council, but did not vote except in those years 
 in which they had also been elected. Phipps, the lieutenant-gov- 
 ernor in 1730, was forbidden by Belcher even to sit in the council 
 unless elected. In 1767 Lieutenant-governor Hutchinson, hith- 
 erto active in council by virtue of repeated election, was dropped 
 out by the house. In the second session of that year the house made 
 formal protest against his being allowed to act or even sit in coun- 
 cil, and they won their point. ^ 
 
 The functions of the council need little description. It shared 
 the executive functions of the governor, and the legislative of the 
 house. As a part of the executive, it was a miniature privy council. 
 Most of the governor's non-military acts required their "advice and 
 consent," a passive function in which they had no initiative. They 
 were expected only to prevent the governor from making an inex- 
 
 ^ Hutchinson, III. 174. 
 
 ^ Trade Journal, August 20, 1691, Lieutenant-Governor to have first 
 place in the council "and at all times to have a vote there." 
 "Hutchinson, HI. 175.
 
 IN PROVINCIAL MASSACHUSETTS. 39 
 
 pedient use of his discretionary powers, or from unconstitutional 
 stretches of them. This sort of business was miscellaneous and 
 very various ; for besides the ordinary functions of appointing 
 civil ofificers, warranting the issue of money from the treasury, 
 and executing functions created by legislative act, it was to in- 
 clude the meeting of emergencies, the performance of all acts of 
 government not otherwise provided for. 
 
 The council might do executive business at any time, at 
 any n'-eeting called by the governor, with the charter restriction 
 that special notice seven days previous must be given when judicial 
 officers were to be appointed. Such were called "general council" 
 meetings, but had no other special power or importance. A quo- 
 rum of seven was required by charter, but the average attendance 
 w'as twice that number, except during recesses of the general 
 court, when the members from Boston and vicinity w^ere the main 
 reliance for forming a quorum. The usual place of meeting was 
 the "council chamber" in the Boston Town House, but the gov- 
 ernor might call it whatever he chose, e. g., at his own house, 
 or infrequently in other parts of the province when the public 
 business took him away from Boston. Its organization as an ex- 
 ecutive body was under the governor as chairman and the province 
 secretary as clerk. It made frequent use of committees to expedite 
 business, standing committees on war and debentures, occasional 
 committees on other matters that arose. 
 
 In case of the incapacity, by death or otherwise, of both gov- 
 ernor and lieutenant-governor, it was provided by charter that 
 the council should be the executive, to "have full power and 
 authority ... to do and execute all and every such acts, 
 matters and things which the said governor . . . could law- 
 fully do."^ On March 15, 1701, Governor Bellomont died, and 
 Lieutenant-governor Stoughton, on July 7. For eleven months, till 
 Dudley's arrival in June, 1702, the council was the chief execu- 
 tive. Wait Winthrop presided, though not the senior member, 
 but all documents requiring the governor's signature were signed 
 by at least fifteen (a majority) of the council; that is, neither 
 its senior member nor its president, but the council itself in its 
 corporate capacity, was administering the government. It was 
 a time of quiet, and no important occurrences tested the efficiency 
 
 ^ Acts and Resolves, I. 19.
 
 40 CONSTITUTIONAL CONFLICT 
 
 of this system. But in 1707 a general instruction was issued by 
 the queen that in such cases the senior councillor should be chief 
 executive. Nevertheless, in a similar case in 1715, it was the 
 council as a whole that assumed the government, regarding the 
 province charter as superior even to the later general instruction. 
 The interregnum was short (February 4 to ]\Iarch 21) and had 
 been caused by a mere accident — the loss at sea of the new com- 
 missions necessitated by the demise of the crown. For control- 
 ling the council in such cases, provision was made in the instruc- 
 tion^ that "the said council shall forbear to pass any acts but what 
 are immediately necessary for the peace and welfare of our said 
 province without our particular order for that purpose.'' 
 
 The legislative power of the council was theoretically equal 
 with that of the house. Its concurrence was necessary to the 
 validity of any act or vote of the general court. It will be seen 
 below that in matters financial the house claimed a pre-eminent 
 power, attempting to push the council down into the position of 
 the house of lords ; denied an initiative and confined to consenting 
 or rejecting. Moreover, since councillors could be rejected by 
 a subsequent house, they were individually careful not to oppose 
 popular measures too strongly or to become too manifestly identi- 
 fied with the prerogative interest. For this reason the council was 
 politically weaker than the house. On most matters short of a con- 
 stitutional issue, however, the two houses stood on an equal 
 footing. Moreover, this inclination to yield to the house was 
 largely overcome by the governor's presence in the council, pre- 
 siding or taking part in debate. Dependent on the house for 
 election, they were also dependent on the governor for confirma- 
 tion, and the nearer influence was the more powerful. Greater 
 experience in public affairs gave weight to the contribution of 
 the council to legislation, especially in the framing of laws and 
 the provision of administrative details. Many important meas- 
 ures were even originated in the council and concurred in by 
 the house, or were framed by a joint committee of the two houses. 
 Now and then, from differences between them, an utter deadlock 
 ensued, especially in the days of Shute and Burnet, or a bill was 
 passed through all its stages in one house and was voted down 
 in the other : but more frequently, after one or two readings in 
 
 ' e. g., Dudley's, 3 Mass. Hist. Soc. Collections, IX. 115.
 
 IN PROVINCIAL MASSACHUSETTS. 4I 
 
 one house, it would be introduced in the other. Messages would 
 pass from one house to the other, offering amendments, insisting 
 on clauses. Usually a compromise of differences was thus ef- 
 fected, often by conference committees, occasionally by conference 
 between the two houses. 
 
 The governor's council then was a very different thing from 
 the board of assistants which it superseded, notwithstanding their 
 superficial resemblances as upper house, executive council, and 
 judicial tribunal. The significance of the assistants as the depos- 
 itary of the peculiar Massachusetts tradition had passed by a 
 gradual but inevitable transition to the house. The change in 
 the suffrage qualification based political power upon property, 
 not church membership, and it was the propertied people in their 
 representative house, not the allied clergy and magistrates speak- 
 ing with authority through a board of assistants, that was to 
 guide the destinies of Massachusetts. This tendency was in- 
 creased by the partial absorption of the council by the prerogative 
 interest, which necessarily separated it as a body from the polit- 
 ical mind of Massachusetts, in the eighteenth-century conflict of 
 the two opposing principles. From the colonial point of view 
 it degenerated in two respects. It lost to the house its character 
 of a representative of the Massachusetts tradition, becoming a mere 
 "other house," unprogressive, opposed to constitutional progress ; 
 it had also gone over to the enemy, supporting the governor, 
 urging obedience to the instructions of the home government. 
 From the imperial point of view it was a convenient instrument 
 for introducing a prerogative element into the legislature of the 
 province ; but its elective mode of constitution much diminished 
 its usefulness, made it weak in opposing the house and vacillating' 
 in its support of the governor.
 
 CHAPTER IV. THE POPULAR HOUSE. 
 
 Massachusetts possessed an advantage over many of the 
 provinces, in that she did not have to evolve a representative body 
 to counteract the prerogative elements in her constitution. Long 
 before the crown had a governor there, the province had a rep- 
 resentative house. The conflict which came was not in the char- 
 acteristic English form of popular encroachment, gradual and 
 tentative, upon the crown, but in the form of an invasion, by the 
 governor acting for the crown, of the popular monopoly of gov- 
 ernmental power, an invasion that was met by a resistance which 
 combined all the strength of Massachusetts seventeenth-century 
 tradition and precedent with the inevitably growing idea of self- 
 government. 
 
 At the time of the planting of the colony, legislative func- 
 tions, as well as administrative and judicial, were performed by 
 the assistants ; the great ones of the community, essentially an 
 aristocratic body, though dependent upon popular election.^ Dur- 
 ing the first five years, however, after Watertown had made its 
 protest against taxation for purposes to which it had given no 
 consent, we see the development of a new body, whose peculiar 
 function it should be to represent the towns individually, which 
 should speak the mind of the people of the colony, while the 
 assistants were the voice of the Massachusetts Bay Company. It 
 is true, the identity of company and colony was the essential fact 
 of the Massachusetts colonial constitution, but so far as there 
 were two separate ideas, company and colony, each had its char- 
 acter emphasized in one of the two bodies whose combined action 
 as the general court was that of Massachusetts. Beginning as 
 a mere occasional body of conferees or town committees for ad- 
 vising the assistants and assenting to taxation, it came soon to 
 permanent self-consciousness as a house, co-ordinate with the 
 board of assistants in legislation and finance, exercising some 
 control over even the judicial and administrative discretion of 
 the assistants. 
 
 ' Osgood, The American Colonies, I. 167. 
 
 (42)
 
 IN PROVINCIAL MASSACHUSETTS. 43 
 
 Under the old charter to some degree, and yet more under 
 the new, the house of deputies, or representatives, was the seat 
 of the country party, of radicaHsm (or, at least, of progress) as 
 opposed to the conservatism of the council ; of democracy against 
 the aristocracy of property and intellect there embodied. But 
 more important politically was the change wrought by the charter 
 of 1691 in the character of the latter body — from the magis- 
 trates of the corporation to the governor's council. However far 
 the council actually was from the prerogative body it was de- 
 signed to be, that very design necessitated the assumption by 
 the house of the important function for which the council would 
 now be regarded as incapacitated, — that of representing the pop- 
 ular will against the encroachments of royalty. The peculiar 
 ecclesiastico-political tradition of Massachusetts, as received from 
 the fathers and to be continued to future generations, the tradition 
 of a self-determined church-state polity, the Calvinistic common- 
 wealth, must from now on be preserved by the house, since the 
 imperialized council was no longer fit to bear that responsibility ; 
 the importance of the house was thereby very considerably en- 
 hanced. 
 
 By the charter provision of checks and balances the house 
 was made dependent in a number of respects upon the royal gov- 
 ernor. It was upon his summons alone that a house could meet. 
 This function could be exercised by him at his discretion, so that 
 he could at all times make use of the advice and assistance in 
 government of the representatives of the people. On the other 
 hand, he might not dispense with their meeting, nor keep a favor- 
 able house in long-continued existence by mere prorogation; for 
 the charter required annual elections. As to their privileges while 
 meeting, they appear at first to have supposed these to be de- 
 pendent upon the governor's will ; for on June 8, 1692, the house 
 presented its speaker to him and asked the customary privileges 
 of freedom of debate, access to the governor, freedom from arrest, 
 "which they expected as their due," and which Phips freely 
 granted them.^ But this was never again asked of the governor ; 
 presumably it was not after this regarded as dependent on his 
 will. 
 
 ' Court Records, VI. 223.
 
 44 CONSTITUTIONAL CONFLICT 
 
 The power of dissolving the house was unquestionably in 
 the governor, to be exercised by word of mouth in the presence 
 of the assembly, or more frequently by proclamation. It must 
 be used every April to make room for a newly elected house. 
 Obviously dissolution was a means by which the governor could 
 get rid of a refractory house, and as such it was sometimes used, 
 e. g., by Shute in 1720 and 1721. But this was infrequent, for 
 the reason that the public business would necessitate a new elec- 
 tion, and hence the governor could gain by such action only in 
 case the house did not possess the confidence of the electorate. 
 As elections were annual, this was unlikely, and the chance was 
 that dissolution would help rather than hinder the opposition, as 
 tending to increase the exasperation of house and people against 
 the governor. 
 
 The power of adjourning the general court was given to the 
 governor without limitation of time and place. In both of these 
 respects encroachment was attempted by the house in its desire 
 to have absolute control of its own action. As a matter of course 
 each house adjourned itself from day to day and over Sunday, 
 by the governor's tacit consent. On a very few occasions the 
 house attempted to stretch this power. For example, in 1693 
 the house adjourned from Friday, the 17th of November, to 
 Tuesday, the 21st, many of its members being necessarily en- 
 gaged in committee work. Of this Governor Phips manifested 
 his resentment as "an intrenchment on the king's prerogative" 
 and the governor's power. ^ The representatives sent a com- 
 mittee on the 2 1st "to acknowledge their mistake in attempting 
 an adjournment of their house without his Excellency's consent 
 and craved his pardon, declaring that they should be cautious 
 for future of any such practice." Much the same thing hap- 
 pened under Shute in 1721, when, because of a Fast Day inter- 
 vening on Thursday and owing to the inconvenience of returning 
 to business for Friday only, the house presumed to adjourn itself 
 from Wednesday, July 12, to the following Tuesday. Shute re- 
 buked them when they came together again, reminding them of the 
 precedent from Phips's time, showing them the council's unani- 
 mous opinion of the irregularity of their conduct. 'T am sensible 
 you have been amused by some sort of men as if this adjourn- 
 
 ' Court Records, VI. 309.
 
 IN PROVINCIAL MASSACHUSETTS. 45 
 
 ment were a branch of your privileges and liberties and so ought 
 not to be parted with, but sure no just or thinking man that 
 reads the constitution of this government as granted by the 
 charter can be of that opinion."^ After some evasion the house 
 was brought to the still somewhat equivocal declaration, on July 
 20, that they "do entirely confess and acknowledge that by royal 
 charter Your Excellency the Governor for the time being have 
 the sole power and authority to adjourn prorogue and dissolve 
 the General Court and the House further acknowledge that Your 
 Excellency ought to have been acquainted with the design and 
 intention of the House . . . before they did so adjourn, and 
 that it was then so designed, but was casually omitted ;"^ as if 
 the governor's power were only over the court as a whole, not 
 excluding the supposed right ol the house to adjourn itself. He 
 dissolved the court in anger. This whole question was set at 
 rest by the explanatory charter of 1725, in the following terms: 
 Whereas by the charter of 1691 "no power is granted" to the 
 house "to adjourn themselves for any time whatsoever . . . 
 it shall and may be lawful to and for the Representatives . . . 
 to adjourn themselves from day to day (and if occasion shall 
 require) for the space of two days but not for any longer time 
 . . . without leave from the Governor first had and obtained."^ 
 The further question arose whether the governor's power of 
 adjournment included the determination of the place of meeting, 
 obviously a matter touching more nearly the convenience and 
 freedom of the house ; for removal might be not only for hygienic 
 reasons, to escape contagion, but also for political reasons, to 
 harrass the house into action or remove them from the influ- 
 ence of a certain community. Now all details of the manner 
 in which the governor should exercise his right of summons were 
 determined by a law of the province, for want of charter provi- 
 sion or executive assumption of that regulation, and in the law 
 establishing the form for the writs of election, the town house 
 at Boston was mentioned as the place of meeting. Here were 
 kept the province records, and custom regarded it as the capital 
 of the province. Upon this basis the house made its claim against 
 Dudley in 1702, Shute in 1721, and Burnet in 1728-9, and in a 
 
 ^ Court Records, XI. 195. 
 
 ==Ibid, 198. 
 
 'Acts and Resolves, I. 23.
 
 46 CONSTITUTIONAL CONFLICT 
 
 more notable case against Hutchinson in 1770, that Boston was 
 the only legal place of meeting, and hence any change, for example 
 to escape the small-pox epidemics, which were not infrequent there, 
 required an act of the legislature of equal formality with the 
 original act — a pure denial of the governor's right. That act 
 of 1693, however, showed on its face, as the governors were not 
 slow to point out, that the writ in the act was signed by 'T. A." 
 (the initials of the then secretary), that it was issued by the sheriff 
 of Suffolk County, and was addressed only to the selectmen of 
 Boston, and that therefore "those words in the writ" (estab- 
 lishing the Boston town house as the place of meeting) "were 
 mere form and like other words in it exempli gratia only." The 
 strength of the position of the house, we must therefore conclude, 
 was not in law, but rather in the custom of the province in favor 
 of Boston, which ought to be broken only for some extraordinary 
 reason, and then by the legislature. 
 
 In August of 1 72 1 the house and council passed a vote to 
 which the governor refused his consent: Resolved, on account 
 of the small-pox raging in Boston, "that the present Great and 
 General Court or Assembly be removed to Cambridge . . . 
 to such time as His Excellency thinks fit." Shute expressed him- 
 self as willing to grant the removal by executive act at the request 
 of the court, but said, "It will be giving up the King's preroga- 
 tive to consent to the adjournment in the form it was sent up." 
 Neither the governor nor the house would yield, and therefore the 
 session quickly came to an end. The court was summoned to meet 
 for its next session at Cambridge. At once the governor announced 
 "that the present method for removing the court from Boston 
 should not be made a precedent," and "that he should be willing 
 that the court should take any proper method to make valid the 
 meeting of the court here, if it were doubted to be regular and 
 legal. "^ This the house apparently regarded as a complete sur- 
 render to its contention. The result was the following resolve : 
 "That the Great and General Court or assembly. Shall and may 
 be Now held at Cambridge, . . . and that No Exception 
 or advantage shall be taken hereby Respecting the power of Re- 
 moving the General Court from place to place."^ Nevertheless 
 
 ' Court Records, XL 240. 
 'Acts and Resolves, X. 120.
 
 IN PROVINCIAL MASSACHUSETTS. 4/ 
 
 Hutchinson says^ that, "by this equivocal vote the governor imag- 
 ined that he had preserved his authority entire." Upon the gen- 
 eral reference to the lav/ officers of the crown concerning mat- 
 ters in dispute between Shute and the house, an order in coun- 
 cil was passed in conformity with their opinion, "that the sole 
 power of ... . adjourning the General Court .... 
 either as to the time or place is in His Majesty's Governor." The 
 explanatory charter made no mention of this matter. 
 
 In 1728 the governor's exercise of his right was opposed with 
 more reason. Burnet, exasperated by the sympathy of the Bos- 
 ton people with the refusal by the representatives to establish a 
 salary, and especially by a resolution to that effect passed in 
 town-meeting, removed the court to Salem, frankly avowing his 
 reason,- hoping that they would now mianifest a better temper, and 
 be more obedient to the instruction. The representatives in an in- 
 jured tone declared that they should carry their sentiments and 
 reasons with them wherever they should be obliged to meet. Ap- 
 parently they admiitted the governor's power to remove ; for, while 
 declaring immediately that they conceive the court cannot without 
 its consent be removed, yet, lest advantage be taken of their non- 
 appearance, reserving to the province the benefit of the law fixing 
 the place, they "do not refuse meeting His Excellency at the time 
 and place aforementioned," i. e., at Salem. Again they conceded 
 the governor's right in their earnest request that he "remove the 
 court to Boston." But two weeks later, after attending to mis- 
 cellaneous business, they made their formal protest. They be- 
 lieved that the act establishing writ-forms required the assembly 
 to be at Boston and could be changed only by the legislature. 
 They made much of the fact that Shute in 1721 had consented 
 to a legislative resolve validating the proceedings at Cambridge. 
 Burnet made complete answer to their protest, and of necessity 
 they proceeded to business. In hearings, before the board of trade, 
 of matters in dispute between Burnet and the house, the Massa- 
 chusetts agents represented the adjournment to Salem as unreas- 
 onable and a hardship, "using his power in a very absolute way," 
 but did not charge it with illegality." In the following session, Au- 
 gust, 1729, Burnet had the satisfaction of reading to the court 
 
 'Hutchinson, III. 300. 
 
 = Court Records, XIV. 183-7. 
 
 ' Palfrey, IV. 519, note.
 
 48 CONSTITUTIONAL CONFLICT 
 
 the report of the board of trade, approved by the privy council, 
 that the question of adjournment had been determined previously 
 in favor of Shute, and that the present governor's action had been 
 agreeable to that determination.^ The matter had been argued in 
 Massachusetts in April, the council this time entirely upholding the 
 governor's contention against the house.- In the same month the 
 governor adjourned the court to Cambridge, where it was sitting 
 when his death put an end to their disputes. The governor cer- 
 tainly had legal right on his side, but considering the breach of 
 custom and the inconvenience to the house of meeting in any 
 other place than Boston, it should have required an extraordinary 
 occasion to justify the use of that right. Moreover, the use of 
 it with Burnet's motive would seem to have been the height of 
 unwisdom, since it only increased the exasperation of the house, 
 already sufficiently opposed to granting a salary, to be harrassed 
 from place to place to bend it to his will. 
 
 It was this body of precedents then to which Lieutenant- 
 governor Hutchinson and the house could refer in 1770, when the 
 question came up once more on his calling the assembly at Cam- 
 bridge instead of Boston. Their refusal to do business, the new 
 argument of the house against removal (viz., that it was based 
 on an unconstitutional instruction) when used in connection with 
 the old ones revived, and the different outcome in this revolu- 
 tionary time,^ are anomalous circumstances not to be treated in 
 this account of the workings of the provincial system. It is only 
 necessary to remark that here is another instance of the prepara- 
 tion which the provincial period was making for the revolution- 
 ary, setting against each other the antagonistic elements in the 
 constitution, and developing their respective attack and defence. 
 
 The form of the popular representative body had not to be 
 evolved by a process of experiment or adaptation, but was found 
 ready to hand. The house of deputies of the colonial period be- 
 came the provincial house of representatives, an experienced 
 body, with customs and traditions of its own, whose power was 
 hardly at all weakened by the Andros interregnum, when the lack 
 of a representative house was simply part of a regime which was 
 regarded as wholly unconstitutional. 
 
 'Court Records, XIV. 264. 
 ^ Court Records, XIV. 233-6. 
 ' Hutchinson, III. 282-300.
 
 IN PROVINCIAL MASSACHUSETTS. 49 
 
 One of the most striking innovations of the new charter, in 
 appearance at least, was the change in the suffrage qualification. 
 The church membership test was abandoned, and in its place was 
 substituted a property qualification, the familiar forty-shilling 
 freehold of the county members of parliament, or the possession 
 of other estate of the value of fifty pounds.^ The original sug- 
 gestion of the board of trade had been a property requirement of 
 one hundred pounds, which was modified to fifty after a conference 
 between the attorney-general and the agents, a concession to dem- 
 ocracy. The new qualification shifted the balance of forces. It did 
 not perhaps involve a very great w idening of the suffrage, though 
 the forty-shilling freehold was a fairly low limit for a commu- 
 nity of small farmers of relatively equal economic position ; but 
 the change was important in that it shifted the basis of participa- 
 tion in things political from the spiritual to the economic domam. 
 It was a plain sign that the Calvinistic commonwealth had be- 
 come an English province, its peculiarity as a people had vanished, 
 its community and sympathy with other English colonies was rec- 
 ognized, a change fraught with great significance for the latter 
 part of the eighteenth century. 
 
 For eligibility to the house the charter required only that the 
 representative be a freeholder. The requirement of residence in 
 the constituency, destined to become so characteristic of the Amer- 
 ican representative system, came in only by statute, and then it 
 would seem almost by accident, to serve a temporary purpose. 
 Governor Phips found himself opposed by a knot of Boston men 
 in the house, who represented distant towns which could ill afford 
 the expense of sending men from home. To get rid of this oppo- 
 sition Phips urged the passage of an act- requiring that the rep- 
 resentatives be freeholders "and resident" in the towns for which 
 they stood. This is subject here to the usual criticism that it 
 meant a loss of strength to the house, since the frontier communi- 
 ties were far less able than the metropolis to produce statesman- 
 ship. The interests of the community represented were relatively 
 
 ^ The editor of the Province Laws has shown the error, by which 
 the word "forty" was substituted for "fifty" in the duplicate of the charter 
 sent to America, an error repeated in many later reprints of the charter. 
 Acts and Resolves, I. 363. 
 
 'Act 1693-4, c. 14. 
 4
 
 50 CONSTITUTIONAL CONFLICT 
 
 of less consequence than those of the colony as a whole, and 
 hence there was less need of accurate local acquaintance with the 
 constituency. However, this system resulted in making the house 
 a more truly representative body. The mingling of men from 
 all parts of the province, the exchange of views, the reaction upon 
 all parts of the province of the doings and deliberations of the 
 house, meant much in the preparation for a time when the cor- 
 respondence between constituents and their members at the cen- 
 ter was suddenly to blossom into a system of Committees of Cor- 
 respondence, which could disseminate ideas rapidly throughout 
 the province and produce simultaneous co-operative action, coun- 
 teracting the otherwise excessive localism of the towns and pro- 
 ducing a provincial community of sentiment. The house of the 
 eighteenth century was a really representative body, in a sense 
 inapplicable to the house of the seventeenth century, or to the 
 commons. Representation was based on economic standing in 
 the community, not on church membership ; and while the latter 
 had originally meant the solid, reliable elements of the commu- 
 .nity, in a degenerate time it was running the risk of involving 
 hypocrisy and fraud, and was coming to mean priestly domina- 
 tion of an undesirable sort. The influence of aristocratic nomi- 
 nation and actual corruption, which so strongly affected the com- 
 mons of the eighteenth century, was not to be found on this side 
 of the Atlantic. With all its crudeness and ignorance of political 
 science and of the principles of legislation, with all its pettiness 
 and faction in dealing with the policy of the home government, the 
 Massachusetts house was at least truly representative, speaking 
 the mind of its principals. 
 
 The unit of representation in the house was the town. Since 
 1639 each town had been entitled to two delegates, and this gen- 
 eral plan was continued in the charter of 1691, with power in 
 the general court to make apportionment. There was substantial 
 equality between the towns ; but some regard was paid to pro- 
 portion in the provision by which every town of 40 or more elec- 
 tors must send one representative, of 120 or more might send 
 two, of 30 to 40 might or might not send one at its option ; while 
 towns with less than 30 electors might join with other towns in 
 choosing and supporting a representative. Exception was made 
 of Boston, which as the metropolis might have four representa- 
 tives. The custom was for every house to be composed of four
 
 IN PROVINCIAL MASSACHUSETTS. 5I 
 
 from Boston and one each from seventy or eighty other towns 
 (a growing number), with two representatives each from three 
 or four of the large coast towns, as Salem, Ipswich, and Newbury. 
 These delegates were elected in open town-meeting, and repre- 
 sented the towns in their corporate capacity. Yet they together 
 formed a provincial legislature, based on the people of the prov- 
 ince as a whole and capable of expressing its unified will ; that is, 
 they were not mere delegates confined as to opinion and powers 
 to the instructions from their towns. 
 
 The house was the sole judge of its membership. The repre- 
 sentatives might "settle order and purge"^ their house and "make 
 necessary orders for the due regulation thereof." They expelled 
 a member in 171 5 for scandalous immoralities, and at times ex- 
 cluded military officers." Fines were imposed for unexcused non- 
 attendance, and the house journal is full of requests by individual 
 representatives that they be excused absence on such and such 
 days for specified reasons. By such procedure the quorum of 
 forty was made easy to obtain. The charter required the taking 
 of the oaths of William, and ]\Iary which were substituted for the 
 Allegiance and Supremacy Oaths, and the Declaration against 
 transubstantiation. Privilege from suit or arrest during the session 
 and during necessary journeying was enjoyed by the representa- 
 tives ; also exemption from military service, constable service, and 
 the watch. Since their pay came ultimately from the town repre- 
 sented, economy was a motive with some towns for slighting the 
 duty of electing a deputy, at a time when the towns were so poor 
 as to feel the burden, and before political agitation had made rep- 
 resentation a privilege to be coveted and used to the fullest extent. 
 Pay was set at three shillings per diem during the time of attend- 
 ance and necessary journeying,^ but was later changed as the cur- 
 rency depreciated to four shillings,* six shillings,^ and to two shil- 
 lings new tenor.^ It was paid from the province treasury and 
 then assessed upon the province tax due from the town. This 
 practice of making the pay of the representative automatic and 
 
 ' Act 1692-3, c. 38. 
 
 ' E. g., Moodey, a "commander of soldiers in pay," July, 1720. 
 
 ^-Act 1692-3, c. 38. 
 
 ^Act 1714, c. 4. 
 
 'Act 1726-7, c. 18. 
 
 ' Act 1737-8, c. 3.
 
 52 CONSTITUTIONAL CONFLICT 
 
 impersonal was precisely what the governor demanded for his 
 own support, and Burnet in 1729 did not omit to call the attention 
 of the house to its inconsistency in refusing a salary to the gov- 
 ernor "for the time being. In fact, Burnet withheld his sig- 
 nature for a time from the warrants for the representatives' 
 pay, in the vain attempt to compel favorable action by them.^ 
 The result of this protest was the assimilation of the two wage 
 systems, but not in the method desired by Burnet. From now 
 on, after the manner of the governor's support, the amount 
 of the daily wages of a representative was fixed annually by act 
 of the general court. ^ 
 
 The organization of the house, with the one exception of the 
 speakership, was exclusively subject to its own action. Its clerks 
 and messengers were elected by it alone, though paid by semi- 
 annual resolves of the whole court. It made great use of com- 
 mittees, to prepare business and formulate policy. The germ of a 
 standing committee system is in the Committee on Petitions, ap- 
 pointed every session to receive and report on pecuniary claims 
 against the province, on muster rolls and expense bills of all sorts. 
 There was usually a committee whose business it was to see what 
 laws were about to expire and needed reviving, and what amend- 
 ments were needed in the law of the province. But besides these 
 standing committees there were many others which were purely oc- 
 casional, e. g., to deliberate on the governor's messages and draft 
 replies ; also a series of quasi-administrative committees, to make 
 special inquiries, or to care for the execution of some command 
 of the house, e. g.. purchase or examination of stores or fortifi- 
 cations, burning bills of credit, and the like. An examination of 
 the composition of these committees reveals the fact that a very 
 few leading men were called upon by the house to ascertain and 
 state its mind on many different kinds of business, indeed, after 
 the manner of a cabinet, to form its policy. During the admin- 
 istration of Shute, when the speaker forsook his former attitude 
 of impartial moderator, that officer was very frequently a member 
 (often chairman) of the committees appointed to represent the 
 house in its diflferences with council and governor. In fact he 
 seems to have developed the position of "leader of the house." 
 
 ^ Court Records, XIV. 239. 
 
 'Acts 1730-1. c. 15; 1731-2, c. 12, etc. Yet this was occasionally 
 omitted, e. g., 1732-3, 1740-1, and regularly omitted after 1748.
 
 IN PROVINCIAL MASSACHUSETTS. 55 
 
 It was this possible leadership that gave significance to the 
 question whether or not the governor might veto the choice of 
 the house for its speaker. The charter was silent on the point, 
 and during the first ten years there seems to have been no sug- 
 gestion of such a right. The house would merely send a message 
 to the governor, informing him whom they had chosen. Bello- 
 mont^ "expressed his satisfaction" with their choice, but that 
 was as near as any of these early speakers came to actual approval 
 by the governor. Dudley, however, proceeded to claim a right 
 analogous to that of the Crown over the commons. In 1702- and 
 also in the two following years he "declared his acceptance" of the 
 speaker chosen by the house. In 1705 the choice of the house 
 fell upon Thomas Oakes, who as agent in England had opposed 
 the new charter. Dudley described him to the board of trade^ 
 as "a known commonwealth's man, never quiet nor satisfied with 
 the government, but particularly very poor;" and, as Chalmers 
 says, he "disliked the government of England."* Dudley de- 
 clared to the messengers of the house "that he did not accept the 
 election" and "by virtue of the power granted him by Her Majes- 
 ty's royal commission directed that the House proceed to the choice 
 of a new Speaker." The house insisted on their choice, standing 
 on the act of 1695, already confirmed in England, which pro- 
 vided that the house might "settle order and purge their house 
 and make such necessary orders for the due regulation thereof 
 as they shall see occasion." It paid no heed to his suggestion 
 that they elect another man with a sak'O jure, but proceeded, as 
 if already fully organized, to the election of councillors, the nec- 
 essary business of the day. The exigencies of defence absolutely 
 required a good understanding between executive and legislature, 
 and Dudley dared not assume the responsibility of arresting pub- 
 lic business by insisting at that time on his claim of right. On 
 appealing to the council he received their opinion, that "it is not 
 in the governor's power to refuse the election of a Speaker and 
 direct the choice of another by virtue of the charter." There- 
 upon he abandoned the contention and announced the next day 
 that, though "he is very well satisfied of Her Majesty's just 
 
 ' Court Records, VII. 70. 
 = Court Records, VII. 361. 
 ' Palfrey, IV. 295. 
 * Chalmers, Revolt, I. 332.
 
 54 CONSTITUTIONAL CONFLICT 
 
 right and prerogative to allow or disallow a Speaker," as well 
 as the council, "being all elected by the Assembly," yet he 
 yielded, owing to the pressing demands of the war, "saving to 
 her most gracious Majesty her just rights."^ Oakes was again 
 elected in 1706, but no record appears of the approbation of the 
 governor. From now on the house was accustomed to send a 
 message "to acquaint" the governor with its choice, "which His 
 Excellency (usually) declared was acceptable to him."- 
 
 In 1720 the house chose for speaker Elisha Cooke, who had 
 prominently identified himself with the popular opposition to the 
 king's reservation of mast timber, and in several ways had made 
 himself very obnoxious to Governor Shute. Upon the formal 
 notification to the governor, "His Excellency answered that the 
 said Elisha Cooke had treated him ill who is the King's Gov- 
 ernor and therefore by virtue of the power given to him by the 
 royal charter he does negative the said Elisha Cooke, and desires 
 the House to proceed to the choice of a new Speaker." The 
 house replied that they "do according to their known and legal 
 privileges insist on their choice." xA.s it seemed likely that the 
 house would regard itself as organized and proceed to the election 
 of councillors, and would do so alone unless the council were 
 allowed to join it, the governor withdrew, but directed the 
 secretary to acquaint the house : "That he is informed Governor 
 Dudley did in his government disallow of a Speaker chosen by 
 the House and that his proceedings herein were approved by the 
 Commissioners of Trade and Plantations, and that it would not 
 be thought fit that His Majesty's right of having a negative 
 upon the choice of a Speaker be given up, which was reserved 
 to His Majesty as well by the charter as by the constitution of 
 England." After the election of councillors Shute made a speech 
 warning the house of the unacceptableness in England of their 
 choice of one who had ill treated the king's governor, for whose 
 removal from the council he had received the thanks of the 
 board of trade. He strongly urged them to choose another 
 speaker with a reservation of their rights, and to send home for 
 an explanation of that part of the charter. The house, after 
 due deliberation, voted upon the question, "Whether they shall 
 
 ^ Court Records, VIII. 114, flf. 
 
 'E. g., 1707. Conn Records, VIII. L'94.
 
 IN PROVINCIAL MASSACHUSETTS. 55 
 
 proceed to the choice of a new Speaker?" and "it passed in the 
 negative nemine contradicente." Next day the governor dis- 
 solved the assembly, expressing the hope that the new one to 
 be elected would choose for speaker "one that fears God and 
 honors the King."'^ The speaker elected by the new house was 
 Timothy Lindal, a choice which the governor declared "was very 
 acceptable to him." They did indeed yield as to the person of 
 their choice, lest business be longer impeded ; but they still in- 
 sisted on their rights, declaring that the assertion and mainte- 
 nance by the former house of their right and ancient privilege 
 of choosing their speaker and not owning his Excellency's power 
 to veto, "was nothing but what they were strictly obliged to." 
 
 In 1 72 1 the second house (elected on the early dissolution 
 of the regularly elected one) met August 2;^, and soon sent word 
 to Shute that they had elected John Clark, "and that he had 
 accordingly taken the chair." The governor replied, "I accept 
 of the choice of John Clark, Esq., as Speaker of the House of 
 Representatives." But the house voted that, while they had 
 sent word "to acquaint His Excellency and the Honorable Board 
 with the choice of their Speaker it was done for their information 
 and not for His Excellency's approbation." Shute replied the 
 next day that the board of trade had informed him of their con- 
 viction, based on the opinion of the attorney-general, that the 
 governor has "a full power to non-concur in the choice of a 
 Speaker and in all elections."- As the house continued of the 
 same opinion as before, Shute urged them to state their case 
 and send it home for determination.^ This was done, and in a 
 general inquiry regarding points in dispute between Shute and 
 the house this question was settled. The law officers of the crown 
 declared that under the charter of 1691 the right of the governor 
 to veto was an open question, the speaker being an officer not of 
 the general court but of the house ; hence, while Shute's action 
 was proper, the right being one enjoyed by the king against the 
 commons, yet the action of the house was not a contempt. An 
 explanatory charter was accordingly issued August 26, 1725, in 
 which express power was given the governor to approve or dis- 
 
 ' Court Records, XI. 3-6. 
 'Ibid, XL 201, 203. 
 " Ibid, 222.
 
 56 CONSTITUTIONAL CONFLICT 
 
 approve the choice of the house.^ From 1722 to 1725, iriclusive,- 
 the house had been merely announcing to the Heutenant-governor 
 that such an one had been elected speaker "and is now sitting 
 in the chair." But after 1726 it was the custom for the house 
 to send a committee presenting their appointee to the governor 
 "for his approbation," and for the governor to send a message 
 in writing approving of their choice.^ 
 
 Powers belonged to the house solely as a branch of the 
 general court, in which its acts must have the concurrence of 
 the council and the consent of the governor. They rested on the 
 express grant by the sovereign in the charter, and may be classi- 
 fied as elective, financial, and legislative. 
 
 It was by the general court^ that the council was annually 
 elected, and all other officers not judicial, including the province 
 treasurer, war commissioners, excise commissioners for the prov- 
 ince or separate counties, commissioners for other financial func- 
 tions, such as audit, and the granting of debentures; also agents 
 to treat with other colonies or with the Indian tribes. It became 
 a disputed question between the appointing governor and council 
 and the electing general court, whether the attorney-general and 
 public notaries were "officers belonging to the courts of justice," 
 and whether or not the house might participate in their election. 
 Until the close of Dudley's administration it was supposed that 
 the attorney-general was such an officer, and he was therefore 
 appointed; but in 1716 Lieutenant-governor Tailer allowed an 
 election to that office,^ by the general court. Shute and Dummer 
 acquiesced in the custom, though Dummer dutifully communi- 
 cated to the house a paragraph in Shute's letter of March 21, 
 1724, "proposing that a just regard be had to the opinion of 
 Attorney-General Raymond" (in England) against the election 
 of this officer by the court. But the council readily joined with 
 the house in electing rather than appointing, and, though on this 
 occasion Dummer vetoed the election, he consented to their later 
 attempts of the same sort, 1725-8." Burnet came instructed to 
 
 ^ Acts and Resolves, I. 22. 
 
 'E. g., Court Records, XII. 169. 
 
 'E. g., 1726, Court Records, XIII. 125. 
 
 * Acts and Resolves, I. 12, 16. 
 
 ' Court Records, X. 61. 
 
 'Court Records, XII. 197-202, 378; XIII. 181, 324; XIV. 76.
 
 IN PROVINCIAL MASSACHUSETTS. 57 
 
 signify to the general court that his Majesty conceived this nom- 
 ination to be the undoubted right of the governor ; hence he was 
 "not to suffer any person to act in that station but such as shall 
 be nominated by" himself. This time (June, 1729) the council 
 sustained him, and unanimously rejected the proposition of the 
 house to make a joint election as hitherto.^ The office was this 
 time filled by the governor and council through appointment. In 
 vain did the representatives protest, declaring it a privilege 
 "which has been transmitted to them by their predecessors" and 
 which they "ought not to forgo."- Again, in November and 
 December, 1729, the house made an elaborate and ingenious argu- 
 ment for what they claimed as a right.' They even requested 
 the grand juries to pay no regard to bills presented by an attor- 
 ney-general "v/hose authority was unconstitutional as it wanted 
 their concurrence." But the council made complete answer to 
 the claim of the house, basing their claim as they safely could, 
 on the governor's peremptory instruction, and that point was lost 
 by the house.* 
 
 Notaries had derived their authority from the Archbishop 
 of Canterbury, but in July of 1720 the house began to include 
 them among the public officers who should be elected by the 
 court. As the council did not accept the invitation of the house 
 to a joint ballot to elect notaries, the house proceeded to elect 
 them by its own votes. When the time came for their being 
 sworn, the governor naturally said, as the council had not par- 
 ticipated in the election "he did not see how they could be 
 sworn. "^ At the November session of the same year, however, 
 the council was brought to concurrence,*^ and thereafter appoint- 
 ment of these officers was made by the general court. 
 
 Hutchinson regarded this method of choosing public officers 
 by joint vote as a defect in the constitution, since the council was 
 less than one-third as numerous as the house, and hence had 
 comparatively little weight except when the house was divided 
 upon candidates. But, remarking that if the election were to be 
 
 ' Court Records, XIV. 244. 
 
 'Ibid, 247. 
 
 Mbid, 335-9. 
 
 *Ibid, XIV. 346-9. 
 
 "Hutchinson, II. 216. 
 
 "Court Records, XL 22-30, 47, 49.
 
 .58 CONSTITUTIONAL CONFLICT 
 
 concurrent instead of joint, the right of nomination would be 
 overpowering/ he did not suggest which house should have 
 that power. The joint ballot by the general court seems to have 
 been a conservative approach to popular election of these sub- 
 ordinate executive officers, the council exerting a regulative force 
 in that choice. 
 
 The taxing and appropriating power was bestowed by the 
 charter in the following words : the general court may "impose 
 and levy proportionable and reasonable assessments rates and 
 taxes upon the estates and persons of all and every the proprie- 
 tors and inhabitants" of the province ; this money to be issued 
 from the treasury upon orders by the governor and council for 
 defence and support of the government "according to such acts 
 as are or shall be in force within our said Province."^ The man- 
 ner in which these powers were exercised, the degree to which 
 the house excluded the council from conference or power to 
 amend, the expansion by the house of its power of control till 
 it amounted to minute regulation, are reserved for description 
 in a separate chapter. 
 
 The legislative power^ was granted to the general court with 
 nearly complete discretion in its exercise. It might "make ordain 
 and establish all manner of wholesome and reasonable Orders 
 Laws Statutes and ordinances directions and instructions either 
 with penalties or without (soe as the same be not repugnant or 
 contrary to the laws of this our realm of England) as they shall 
 judge to be for the good and welfare of our said Province or 
 territory and for the good and ordering thereof and of the people 
 inhabiting or who shall inhabit the same and for the necessary 
 support and defence of the government thereof." Some degree 
 of formality was developed in the procedure of legislation, every 
 act requiring three readings to pass to engrossment and enact- 
 ment, the bills passing from one house to the other between 
 readings, conferences by committee or by joint assembly accom- 
 modating differences as they arose. But a number of practices 
 in legislation arose which seemed undesirable to the home au- 
 thorities, and which the governors were instructed to prevent. 
 The first to attract attention was the placing a time limit on the 
 
 Hutchinson, II. 298. 
 ' Acts and Resolves, I. 16. 
 Acts and Resolves, I. 15.
 
 IN PROVINCIAL MASSACHUSETTS. 59 
 
 operation of acts. For reasons that will appear more plainly in 
 the discussion of financial and military control, the general court 
 was accustomed to limit to one year (or other definite short 
 period) the duration of the tax and impost acts/ also a whole 
 body of legislation corresponding to the mutiny act at home, 
 providing for the levy and discipline of soldiers,- the transporta- 
 tion of them out of the province, the offering of scalp bounties. 
 Moreover, other acts more or less experimental in character, e. g. 
 offering bounties on hemp and flax,'^ regulating hawkers,* swine, ^ 
 the poor," or granting monopolies,' were passed for a period of 
 three or five years, then perhaps renewed or allowed to lapse, in 
 some cases made perpetual. Very likely there would have been 
 no objection to this as mere legislative practice, but the home 
 authorities feared that the character of temporariness given to 
 legislation which was absolutely necessary to the executive, was 
 merely a cover for the requirement of frequent submission of es- 
 sentially permanent laws to legislative action, in order to give the 
 house leverage upon the governor. This was undoubtedly the case 
 with the fiscal and military laws. Furthermore, it was supposed 
 that laws which were displeasing to the home government might 
 escape disallowance by being made temporary and hence 
 scarcely worth disallowing, so that the court might pass these 
 laws, give them effect for a limited period, and then pass them 
 again. This procedure was scarcely at all used, and in the long 
 run ill effects in any particular case could be avoided by instruc- 
 tion to the governor to use his veto. But it was apparently 
 feared ; for Bellomont received an additional instruction® that 
 all laws for the support of the province, except temporary laws 
 having their effect within a certain time, were to be made per- 
 petual, and no act was to be re-enacted "except upon very urgent 
 occasions but in no case more than once without His Majesty's 
 express consent." 
 
 ' Acts 1692-3, cc. 4. 5. 
 = Acts 1697, cc. 1, -J, 5, 12, 13, 14. 
 =■ Act 1701-2, c. 13. 
 'Act 1710-1, c. 13. 
 = Act 1713-4, c. 16. 
 " Act 1703-4, c. 14. 
 ' Act 1728-9, c. 17. 
 
 " February 3, 1698-9 ; incorporated into the regular instructions of 
 later governors, e. g., Dudley's, 3 Mass. Hist. Soc. Coll., TX. 105.
 
 6o CONSTITUTIONAL CONFLICT 
 
 Less important constitutionally was the early practice of 
 joining several matters in one act which had little or no relation 
 to each other, and of making their continuation or supplementa- 
 tion in later acts merely by reference to their titles, which caused 
 much confusion in the law of the province as understood in Eng- 
 land, especially as the facilities for the transmission of laws were 
 very imperfect, and the law officers of the crown sometimes found 
 themselves called upon to advise as to the expediency of allowing 
 an act which merely referred by title to a number of former acts, 
 perhaps not perfectly consistent. This was the occasion of the 
 instruction informally intimated to Stoughton, given in due form 
 to Dudley^ and later governors, that independent subjects of legis- 
 lation be not embraced within the same act, and that no clauses 
 be inserted relating to matters not referred to in the title ; and 
 of a later instruction (the 12th in the set issued to Burgess) that 
 no act be suspended, altered or repealed by general words, but 
 only by express mention. A further attempt at regulating the 
 legislation of the general court was an instruction, appearing first 
 as Burgess's 14th and continued thereafter, that no act ''of unu- 
 sual and extraordinary nature wherein our prerogative or the 
 property of our subjects may be prejudiced" be passed without 
 the royal pleasure previously signified, or a clause suspending 
 its operation till the royal pleasure be known. Its 'terms were too 
 indefinite, however, to be a very effective regulation of the court's 
 legislative power. 
 
 Another power granted to the general court was that to 
 "make or pass any grant of lands lying within the bounds of" 
 what had been the colonies of Massachusetts Bay, Plymouth, and 
 Maine. This naturally belonged to the court as representative 
 of the corporate personality of the province, which had succeeded 
 to the ownership of the property of the Massachusetts Bay Com- 
 pany, but it is worth noticing in contrast with the governor's 
 power in some provinces to grant public lands, an opportunity 
 for fraud not always neglected. Accordingly it was the general 
 court that granted authority for surveys in the public lands, held 
 hearings of objectors to the grants, and finally passed title to 
 individuals or to companies of persons thereby incorporated 
 as towns. 
 
 '3 Mass. Hist. Soc. Coll., IX. 103.
 
 IN PROVINCIAL MASSACHUSETTS. 6l 
 
 The judicial power of the general court was contained in the 
 right given it to "erect and constitute judicatories and courts of 
 record or other courts . . . for the hearing, trying and deter- 
 mining of all manner of crimes . . . causes and things." 
 With the imperfect separation of powers in the old regime the 
 general court had done a good deal of judicial business itself. 
 This part of its functions was done away with by the new charter, 
 (though not by express provision), the legislature confined itself 
 to legislative work, and judicial work was done by a complete 
 system of courts created by the legislature, with a superior court 
 for the final hearing of appeals from the local courts, saving an 
 appeal in some cases to the king in council.^ The general court 
 heard no cases, but occasionally on petition and hearing passed a 
 private act granting retrial or such other special relief as the case 
 required. 
 
 A unique case was that of John Borland and others in 1706, 
 involving six prominent Boston merchants who were accused of 
 furnishing supplies to the enemy in Nova Scotia. Even Governor 
 Dudley was accused by rumor of complicity, to the extent at least 
 of connivance at breaches of the law, and intense political excite- 
 ment prevailed. By committee the house expressed to the coun- 
 cil its request, that such proceedings, examinations, trials and 
 judgments may be had and used upon and relating to the said per- 
 sons as is agreeable to law and justice."^ Hutchinson remarks: 
 "It was expected that the council would proceed as the House of 
 Lords do upon an impeachment. No wonder the council did not 
 immediately proceed. In trying a capital oflfence it behooved 
 them to be well satisfied of their jurisdiction."^ The house, either 
 convinced that that proceeding was irregular, or fearing that the 
 charge of high treason could not be supported, proceeded to pass 
 private bills of pains and penalties, declaring in each case the 
 guilt of the subject of the bill and sentencing him to the payment 
 of a considerable fine. The whole proceeding was nullified shortly 
 after by the disallowance of these private bills by the privy coun- 
 cil, and its order for the repayment of the fines. 
 
 The political complexion of the house has been several times 
 hinted at. It was at all times the seat of opposition to the preroga- 
 
 ^ Acts and Resolves, 1. 15. 
 ' Court Records, VIII. 208. 
 ' Hutchinson, II. 142.
 
 62 CONSTITUTIONAL CONFLICT 
 
 tive, with a greater or less degree of unanimity on different occa- 
 sions. The ports, especially Boston, furnished leaders for this 
 party, who were followed in opposition by the members from the 
 country towns. It was the radical, or at least progressive, rather 
 than the conservative, commercial classes, of the port towns who 
 held this position of leadership. Such men as Dr. Elisha Cooke 
 and his son, were able, by appeal to popular prejudice against 
 outside (i. e., home government) interference, to win a following 
 and weld it into a fairly compact party, which they used, gen- 
 erally for the patriotic purpose of checking executive excesses, 
 but sometimes apparently in a factious spirit, to serve a private 
 pique or hamper the governor in the legitimate and politically 
 expedient exercise of his powers. 
 
 The port towns were less fond of rotation in ofifice than the 
 country, more inclined to send the same representatives to suc- 
 cessive general courts and thereby win experience and influence. 
 In the thirty-five elections from 1693 to 1725, Charlestown, for 
 example, sent individuals as her representatives for an average of 
 3.8 terms each, and one of her representatives served sixteen 
 terms. Shute complained of a maxim in Boston, "A negatived 
 councillor" (therefore a man obnoxious to the governor) "makes 
 a good representative," and it was a fact that three of the Boston 
 delegation in 1723 had at various times been excluded from the 
 council by the governor. Shute regarded the house generally as 
 composed for the greater part of "men of small fortunes and 
 mean education." He complained that the Boston men by insinu- 
 ation made the country members believe the house was barely 
 supporting its privilege, a distressingly absurd misstatement of 
 the case as he saw it. 
 
 Viewed in the light of what was to come, service in the house, 
 the election and instruction of members by their constituencies, 
 the correspondence and information of constituents by their dep- 
 uties, formed an important influence in the political education 
 of the province, in its growing apprehension of the meaning of 
 real democratic self-government, by people, not clergy. Out of 
 the multifarious disputes involved in the nature of things be- 
 tween governor and house, the province learned to know itself, 
 to find where its interest clashed with that of the home govern- 
 ment as represented in the governor, to develop and systematize its
 
 IN PROVINCIAL MASSACHUSETTS. 63, 
 
 resources for opposition and its power to compel the agent of the 
 home government, to estimate the value of the connection with 
 the mother country, a value which might one day seem insufficient 
 to make further continuance worth while.
 
 CHAPTER V. THE SALARY QUESTION. 
 
 Among disputes between the governor and the house, con- 
 sidered as a general feature of colonial political life, none is more 
 often referred to than the salary controversy. In Massachusetts, 
 till its settlement in 1735, this apparently sordid quarrel occupied 
 an amount of attention far exceeding that which would be 
 given to a mere administrative detail. Had it not a larger signifi- 
 cance? The governor demanded a fixed permanent salary, and 
 the house refused, substituting therefor an annual allowance, 
 all agreeing that the governor should have a support from the 
 province, differing merely upon the method by which it should be 
 granted. In the minds of the political leaders of the province this 
 was held to involve much more than a mere administrative detail, 
 rather a fundamental constitutional principle was at stake, viz., 
 that the disposal of public money was the function of the repre- 
 sentative body of the province, subject to no dictation from home. 
 Moreover, with the development of the provincial constitution by 
 the interaction of legislative and executive departments, the pro- 
 vincial leaders gradually came to see that with the salary contro- 
 versy was involved the yet more fundamental question of the rela- 
 tion of the departments. It came to be realized more and more 
 clearly that, if the executive were supported without reference to 
 the legislature, the former would become a perfectly independ- 
 ent department ; if the support of the executive were controlled 
 by the legislature, its freedom would be limited. If the governor's 
 contention prevailed, the executive and legislature would remam 
 co-ordinate; the triumph of the house meant the subordination 
 of the executive, and something in the nature of a parliamentary 
 sovereignty as a result. 
 
 In his capacity of royal official the governor was very un- 
 welcome to the province, because he represented an external au- 
 thority, and his presence involved a substantial limitation on local 
 self-government. This circumstance of itself made a cheerful 
 support by the legislature unlikely, in the light of their undoubted 
 preference to do without him altogether. The poverty of the 
 
 (64)
 
 IN PROVINCIAL MASSACHUSETTS. 65 
 
 province would be adduced as a reason for small pay more readily 
 in dealing with the unwelcome foreign official than in the case of 
 the native military and civil officers. Further, the fact that the gov- 
 ernor was a royal officer, who was responsible to the king and not 
 to the province, but whom it ought to pay for the service he was 
 manifestly performing for it, was held to mean that the king was 
 prescribing part of the expenditure of the province. Fortified by 
 three-quarters of a century's experience under the colonial char- 
 ter, and relying upon the analog)^ between general court and par- 
 liament, the province was fully persuaded that it was the right 
 of the provincial legislature alone to determine the modes of ex- 
 penditure of public money. The charter required that the issue of 
 money from the treasury be according to the rules and orders of 
 the court. This gave the court the whip hand. The home govern- 
 ment might recommend, might command, might even threaten 
 the general court with the dire penalty of an act of parliament 
 in case of a refusal of a fixed salary ; but it could not actually grant 
 the money, and as the court chose to run the risk it persistently 
 refused to make the grant, and in the end the home government 
 had to yield. 
 
 But if the governor was an official existing for the purposes 
 of the home government, why should he not be paid by the home 
 government, and thus be saved a deal of friction and waste of 
 energy ? This suggestion was made at an early period by the board 
 of trade, but was never approved. In the first place, he was so 
 evidently serving the province as well as the home government, 
 that it seemed only just that so much at least of the expense of 
 imperial administration be borne by the province receiving the 
 benefit. In the second place, it was always to be hoped that by 
 some means, (military exigency, political adroitness, or what not), 
 the governor would be able to win his point with the general 
 court, and secure the obedience of the province to the command 
 of the home government. But the payment of the governor from 
 England would have been intolerable to Massachusetts. The sav- 
 ing to the treasury would have been appreciated, but of heavily 
 overbalancing consequence was the constitutional opportunity 
 hinted at in the beginning. The proposition was never formally 
 made in our period, so there was no expression of the opinion 
 of the province; but the indignation in 1773-4 at a similar provis- 
 5
 
 66 CONSTITUTIONAL CONFLICT 
 
 ion for the judges of the superior court^ leaves no doubt what 
 her answer would have been at the beginning- of the century. A 
 governor not only appointed in England, but also looking thither 
 for his support, with no personal loss to fear from the ill-will of 
 the province, and nothing to gain from its good-will, would have 
 been (they might say) far more under the temptation to play the 
 plunderer. It was their constant argument that the governor 
 should be induced by his own "interest as well as duty" to consult 
 the welfare of the province. Here is a presumption on the part 
 of the province that the relation with the governor must neces- 
 sarily be one of distrust and suspicion, a presumption boding no 
 good for the efficient and smooth working of the system. But even 
 if the personal integrity of the imperial official were presumed, it 
 was evident that without such a lever as a variable allowance the 
 legislature could not hope to subject the executive to a subor- 
 dinate position ; it must give up the idea of restoring by gradual 
 encroachment the seventeenth-century parliamentary supremacy 
 of the general court. 
 
 The significance of the salary question was appreciated by 
 both parties. At the very outset, by the advice of Elisha Gooke, 
 who as an agent in England, had stood out most persistently 
 for the old charter, and who for many years was the leader of the 
 ^'country party" in Massachusetts,- it was decided that no salary 
 be established for the governor, and instead he was granted every 
 year an allowance "for his service and expense," or "to enable 
 him to manage the affairs of the government." The house real- 
 ized more or less clearly the doctrine of its leaders, that the annual 
 support could be used as a club over the governor's head to secure 
 some measure of compliance with its will. Accordingly it became 
 the practice to pass the allowance to the governor on the last or 
 next to the last day of the session. Indeed, in 1721 it became a 
 matter of dispute between the house and Governor Shute whether 
 it were not a fixed custom that the house should be informed that 
 the governor had approved the acts, resolves, and elections of the 
 session before it should be expected to enter upon allowances. 
 In 1735, when the demand of a fixed salary was given up, the 
 privy council insisted that the governor's allowance should be 
 
 'Hutchinson, III. 386, ff., 422, flf. 
 
 'At his death, in 1715, his son Elisha Cooke, Jr., succeeded to this 
 leadership.
 
 IN PROVINCIAL MASSACHUSETTS. 6/ 
 
 passed at the beginning of the session, to which practice the 
 house thenceforward conformed.^ 
 
 The home government also reaHzed, at least theoretically, 
 the importance of this question. It viewed the matter as did 
 Quary, surveyor-general of the customs, Vv4io observed to the 
 board of trade in 1703, that he could not see how a governor 
 could serve the interest of the crown when dependent "upon the 
 precarious humors of the people for a subsistence." "It lays the 
 governor under the temptation of making sometimes a very dis- 
 advantageous bargain for the crown and stooping below the 
 dignity of his character."- The board of trade said, March 27, 
 1729, that the appeal of the house to the governor's pocket meant 
 that they would pay the governor in proportion as they judged 
 he deserved, by giving his assent to all the measures which they 
 proposed. Accordingly the king instructed his governor, begin- 
 ning \vith Dudley in 1702,'' "to propose to the General Assembly 
 of our said Province and accordingly to use your utmost en- 
 deavours with them, that an act be passed for settling and estab- 
 lishing fixed salaries upon yourself and others our captains-gen- 
 eral that may succeed you in the government . . . suitable 
 to the dignity" of the office. 
 
 But when mere recommendation was fouad to be ineffectual, 
 the home government, instead of passing immediately to meas- 
 ures which would bring the matter to an issue, allowed it to 
 drift unsettled. Meanwhile the province was making hay in the 
 sunshine of official indifference, and was establishing a line of 
 precedents that became only more difficult to break as time went 
 on. Governor Shute went home in 1723 with a formidable bundle 
 of charges against Massachusetts, including her disobedience in 
 the matter of his salary. Then at last was the question taken up 
 seriously. In Burnet a governor was found who would insist 
 on doing what he thought to be his duty, in which he included 
 strict obedience to the salary instruction. His whole admin- 
 istration was one brisk fight over that issue. At Burnet's death 
 Belcher was appointed, with strong hopes that skilful manage- 
 ment would succeed where high character had failed. But after 
 seven years' experience of a house annually subject to election, 
 
 ^Palfrey, IV. 539. 
 
 ^3 Mass. Hist. Soc. Coll., VII. 230. 
 
 'Ibid, IX. 104.
 
 68 CONSTITUTIONAL CONFLICT 
 
 yet unchanging in its resolution not to yield to strong and skil- 
 fully applied pressure from two successive governors, the privy 
 council gave up. In 1735 the governor was given permission to 
 accept annual allowances from the house. 
 
 A description of the progress of the dispute under successive 
 governors will illustrate the features above outlined. Under the 
 old charter government there had been a system of permanent 
 salaries, attached to the office, not the man.^ This was subject 
 to no objection in the days of unified, complete self-government. 
 But with the new charter came an entire change of system. Even 
 the native officials were now made dependent upon annual or 
 semi-annual grants by the general court. 
 
 It is just possible that if Phips had been instructed as were 
 later governors, and had resolutely insisted on the passage of 
 a permanent salary, the circumstances of the uncertainty then 
 prevailing in regard to constitutional relations in the meaning 
 of the new charter, and the assistance of a council named in 
 England, might have combined to bring success. He did not, 
 however, make such a demand, appears to have been unaware 
 of the significance of the question and of his responsibility as 
 governor,- and Vvas apparently content with the "presents" the 
 court gave him. These were indeed munificent in comparison 
 with the salary of the colony governors,^ but the establismhent 
 of precedents was of the greatest importance in such a case, and 
 the popular body under Cooke's guidance thoroughly appreciated 
 the significance of the opportunity and its own responsibility, 
 gaining thus an advantage by no means lightly to be esteemed. 
 They made him mere grants, single and unconnected, though of 
 so considerable a sum as £500* and he approved them ; thus was 
 fixed for a considerable period the form in which the support 
 of the governor was to be provided by the house. 
 
 Bellomont received no precise instruction as to the attitude 
 he should take on this matter, and his short term was occupied 
 
 ^ Osgood, American Colonies, I. 485. 
 
 " True he wrote to the board of trade that "no salary was settled," 
 and he "desired it might be considered." He requested that the king 
 "nominate to the said assembly a salary sufficient for his support as Gov- 
 ernor." Palfrey, IV. 142. 
 
 '£120 by the establishment of 1653. Mass. Col. Recs., III. 320. 
 
 * E. g., "for his great service in the government the last year," June 8, 
 .1094. Acts and Resolves, I. 174.
 
 IN PROVINCIAL MASSACHUSETTS. 69 
 
 with Other concerns. But his tactful cultivation of the Puritan 
 good-will by social complaisance and a popular attitude on most 
 political questions secured him remarkably large presents, and 
 showed how large a factor personality may be even in a consti- 
 tutional struggle. This is illustrated by Hutchinson's mention^ 
 of "a speech of his to his lady, when his table was filled with 
 representatives from the country towns, — '^Dame, we should treat 
 these gentlemen well ; they give us our bread.' " This Irish peer 
 was estimated at twice the value of Phips, the native ship-builder, 
 and £1,000, was granted by act of July 14, 1699,^ "to the sole 
 and proper use of" Lord Bellomiont, and again just a year later, 
 July 5, 1700,^ another thousand pounds was granted, the court 
 having "resolved to make a present" to the governor. His house- 
 rent also was paid by the general court, and a special present 
 of £500 was made, to be used by him in forwarding the court's 
 address to the king in regard to Harvard College. By reason 
 of an instruction restraining the governor from accepting money 
 from the assembly without the king's leave express permission 
 was obtained in these cases.* 
 
 It was no pleasure to Bellomont to have "so precarious a 
 foot for a salary for this government," and he complained of it 
 in his letters home.^ In his view £1200 would be a more proper 
 figure, and it should be by permanent, not annual, legislative act. 
 The board of trade remarked, April 11, 1700, on the contumacy 
 of the "only Province depending immediately on the King which 
 has not settled an allowance on the Governor," though much 
 better able than others. Ashurst, the Massachusetts agent in 
 London, upon inquiry from the board of trade, made reply that 
 he did not believe the general court would consent to a "salary 
 upon all governors for the future ;" but "doubted not but that 
 they might be persuaded to settle a suitable salary upon the Earl 
 of Bellomont during his government."'' More was to be heard 
 later of this compromise proposition, now suggested by the agent, 
 and later to be supported by the council under Burnet and 
 
 ' Hutchinson, II. 107, note. 
 
 "Acts and Resolves, I. 394. 
 
 'Ibid, 437. 
 
 Mbid, 766, 777. 
 
 'August 28, 1699, Palfrey, IV. 177. 
 
 "Palfrey, IV. 177.
 
 70 CONSTITUTIONAL CONFLICT 
 
 Belcher, but it was to be at first ignored by the board of trade 
 and later rejected by the house. 
 
 The first years of Dudley's administration saw the issue 
 sharply defined. In his first speech to the general court, 
 on June i6, 1702.^ he announced that he was expressly in- 
 structed (as above) to insist on fixed salaries for the executive 
 officers, and upon a house for the governor's use, warning 
 them that it was remarked in England that there was no 
 other province where fixed salaries were not granted. The 
 house ignored this point, and merely resolved "that the sum 
 of £600 be at this time presented out of the public treasury 
 to His Excellency Joseph Dudley ;" a little later an act 
 was passed accordingly.- In its reply to the governor's speech, 
 the house disposed of his argument in summary fashion: 
 "As to settling a salary for the Governor, etc., it is altogether 
 new to us, nor can we think it agreeable to our present 
 constitution, but we shall be ready to do according to our 
 ability what may be proper on our part for support of the gov- 
 ernment." Later in the year two hundred pounds in addition 
 was granted him by resolve "for his service as Governor and for 
 house-rent for the present year, beginning from the time of His 
 Excellency's arrival.''^ This was the outcome of a thorough 
 consideration of the affair between governor and house, Dudley 
 reading his instruction and telling them they were "parties priv- 
 ileged and as singular in neglect of duty,'' the house declaring 
 that "it is not convenient (the circumstances of the Province 
 considered) to state salaries, but to allow as the Great and Gen- 
 eral Court shall from time to time see necessary."* The council 
 at first agreed that this was not "a suitable maintenance for His 
 Excellency," but finally recommended that Dudley accept the £200 
 for the time, hoping better things from a later session. 
 
 On April 10, 1703, the privy council passed an order^' drafted 
 by the board of trade, to be communicated to the Massachusetts 
 council and house, "to require them that in consideration of the 
 great privileges they enjoy they do settle a constant allowance 
 
 " Massachusetts Archives, CVIII. 1. 
 ''Acts and Resolves, I. 498. 
 'Acts and Resolves, VII. 358. 
 'Court Records, VII. 327. 
 'Acts and Resolves, VII. 323-4.
 
 IN PROVINCIAL MASSACHUSETTS. Jl 
 
 suitable to the character and dignity of that government without 
 hmitation of time," intimating that "if they neglect this oppor- 
 tunity of complying with Your Majesty's just expectations Your 
 Majesty will be obliged to have recovirse to such remedies as 
 may be proper and effectual to a due provision therein.''^ 
 
 The newly elected general court passed a resolve, July 30, 
 ^y^Z' — ^ resolve being usual from now on, instead of an act, 
 which would be subject to veto at home — granting £300 to 
 Dudley "in part for his support in the management of the gov- 
 ernment thereof the year currant." The council sent a message 
 to inquire of the house whether this was "a gratuity or for serv- 
 ice and precisely for how long, and to move a suitable allow- 
 ance ;" but no satisfaction could be obtained from the house, and 
 the council finally advised Dudley to accept it. In September,^ 
 and again in November, on postponement for the sake of getting 
 a "fuller house," Dudley became very urgent, bringing the house 
 on the 5th of November to the following formal statement and 
 defence of its position : "As it is the undoubted privilege of the 
 English nation to raise any sum or sums of money when and 
 to dispose of them how they see cause, and so hath been from 
 Henry III and confirmed by Edward I and ever since continued 
 as the unquestioned right of the subject, so we hope and expect 
 ever to enjoy the same under our most gracious Queen Anne 
 and her successors, and therefore do account it inconsistent with 
 Her Majesty's interest here, and that it may prove prejudicial 
 to Her Majesty's subjects in this Province to state perpetual 
 salaries." In the March session the annual allowance was com- 
 pleted to £500 by an additional grant of £200 "for and towards 
 his support in the government."* Dudley was obliged to write 
 home to Nottingham, April 21, of his disappointment at the 
 "stubborn resolved temper" of the house, "that they will agree 
 to nothing wherein they may show their obedience to Her Maj- 
 esty."^ 
 
 This temper, moreover, did not yield to Dudley's repeated 
 urgings, nor even to the royal urgency displayed in the letter from 
 
 ' Palfrey, IV. 254-5. 
 
 "Acts and Resolves, VIII. 23. 
 
 Mbid, 339. 
 
 'Ibid, 52. 
 
 'Palfrey, IV. 291.
 
 72- CONSTITUTIONAL CONFLICT 
 
 the home government communicated December 27, 1709, calHng 
 it "unreasonable" for Massachusetts to expect protection from 
 her Majesty "while they of all the colonies in America do refuse 
 to settle a salary." The last stand was made in September, 1705. 
 In spite of the disinclination of the house to consider a new 
 letter from the queen regarding the repair of Pemaquid Fort 
 and the salary question without a fuller attendance, Dudley in- 
 sfsted that "the House should sit till it made answer." The 
 result was an address to the queen, in which the court justified 
 its course of disobedience on the ground of the right of English- 
 men to representation and consent in taxation and appropriation, 
 "which we have hitherto happily Enjoyed under your Sacred 
 Majesty, And we humbly hope and pray will be continued to us 
 and our posterity." In the reply to the governor's speech, 
 reason for non-compliance had also been found in the fact that "the 
 circum.stances of this Province as to our ability to support the 
 government are at times so different."^ At this point the gov- 
 ernor lost his last ally ; for the council, on being formally asked 
 its advice on the question among others, "Whether they advised 
 to the settling a fixed salary for the Governor and Lieutenant- 
 Governor for the time being?" gave a negative answer. - 
 
 The question was thus settled for the period of Dudley's 
 administration. The home government left unrealized its vague 
 threat of "further measures," and the house remained master 
 of the field. Every year presents were regularly made, £300 in 
 the summer, £200 in the winter session, and Dudley accepted 
 these gifts, not with good grace, but in a spirit of resignation 
 to disappointment. The variation in amount, which the house 
 feared niight be necessitated by the poverty of the province, and 
 which the home government feared might adapt itself to the 
 governor's degree of compliance with the will of the assembly, 
 did not show itself. £500 was the sum regularly granted through- 
 out Dudley's administration, and it might well be regarded as 
 the minimum of decency. Bellomont his predecessor had 
 been ill satisfied with £1,000, and Shute, his successor, received 
 ii200. Dudley himself intimated that it was only his own pri- 
 vate estate that enabled him to live on such a pittance.^ 
 
 'Acts and Resolves, VIII. 519. 
 'Executive Council Records, VIII. 153. 
 'Acts and Resolves, VIII. 555.
 
 IN PROVINCIAL MASSACHUSETTS. 73 
 
 Shute came instructed in much the same terms as was Dud- 
 ley, though the province of Massachusetts, it was said, "has not 
 hitherto taken any manner of care in that matter."^ A house was 
 provided for him, so he was spared the pain of insisting on that 
 detail. In his first speech, November 7, 1716, Shute informed the 
 court of his instructions,- but as usual received only a grant of 
 £500 "for his support in managing the affairs of government."* 
 The following April the house declared that, "considering our 
 constitution, it will not be for His Majesty's service nor for the 
 good and advantage of his subjects here to have fixed and stated 
 salaries, but that we shall very readily do according to our ability 
 what shall be proper and necessary for the support of His Majes- 
 ty's government over us."* The next day "in consideration" that 
 the governor had said "that he came with the utmost resolution to 
 study the true interest of this province," which is "very grateful 
 and acceptable to this house," an extra £300 was granted f Shute 
 accepted it, saying it "will help the defraying the charge of my 
 transportation." In the May session the new house granted ^6500 
 for half the civil war.** Shute reminded them that owing to the 
 inflated condition of the currency this was not more than £250 
 sterling, and complained that "the expense I am at even with 
 decency to support my character is greater than you may possibly 
 imagine." In November another £500 was granted,^ and in Feb- 
 ruary, 1718, still £200 more,® "in Consideration of the Dearness 
 of all. necessaries of House Keeping." 
 
 This total of £1200 was continued till 1720, the year of 
 Shute's most acrimonious disputes with the house. At this time 
 the semi-annual allowance of £600 was reduced to £500, notwith- 
 standing the expression of the unanimous desire' of the council 
 that the allowance be not less than during the last three years. 
 Here was a plain case, (in fact, the only one) in which the house 
 administered discipline to a governor for opposition to its policy by 
 
 ^ House Journal, December 17, 1720. 
 
 'Court Records, X. 92. 
 
 "Resolve 1716, c. 151. 
 
 * Court Records, X. 126. 
 
 "Resolve 1716-7, c. 161. 
 
 "Resolve 1717-8, c. 62. 
 
 ' Resolve 1717-«, c. 133. 
 
 "Resolve 1717-8, c. 161. 
 
 "Court Records, XI. 104.
 
 74 CONSTITUTIONAL CONFLICT 
 
 actual reduction of his salary. Shute addressed a joint session 
 of the two houses/ said he expected £1200 as formerly, especially 
 since the value of the paper money was sinking. The salary in- 
 struction 'was read. To his exasperation the house replied that 
 it thought it had made an honorable allowance, and since ''the 
 affair of settling salaries is a matter of great weight and wholly 
 new to this House," it desired postponement till more should be 
 present. The appropriation was accepted. At the next session, 
 upon Shute's expostulating- against the new figure, the house 
 replied that the resolve of last session was adopted "after a free 
 and full debate, and carried by a very great majority of the mem- 
 bers of the House." They considered the present allowance "as 
 much as the honor and service of this government call for," and 
 at that figure it remained during Shute's administration. 
 
 In the July session of 1721 occurred another instance of the 
 exercise of compulsion on the governor in the action of the house 
 on his allowance. Toward the end of the session the house sent 
 to the governor to know whether he had passed upon the elections 
 of impost officers, which, besides the joint vote of the two 
 houses, required his signature. Shute replied rather testily that 
 he had sent down ten times that he had that list under considera- 
 tion, and that he might as well send down to the house to know 
 what they had done about his salary, and that the house knew 
 what they had to do. The house thereupon laid down the propo- 
 sition that they were accustomed to have all legislative acts of 
 this sort completed before they entered upon allowances. The 
 governor made an equally high claim, viz., that he was not accus- 
 tomed to sign the elections and resolves till after the allowances 
 were passed. The issue of fact was not resolved, but the import- 
 ant thing was that he told the house "they might depend on it 
 that he will sign everything before him before the court rises. "^ 
 Upon this the allowances were passed. 
 
 Discouraged by its experience with Shute and his assemblies, 
 the board of trade appear on this occasion to have been ready to 
 cut the Gordian knot; for in March, 1726-7, it made a represen- 
 tation to the privy council "that since the people had, in opposi- 
 tion to the royal instruction, reduced the governor to an avowed 
 
 •Court Records, XI. 108-111. 
 = Ibid, 113. 
 "Ibid, 186-190.
 
 IN PROVINCIAL MASSACHUSETTS. 75 
 
 dependence, it would be proper that he should be paid a salary 
 by His Majesty at home, till the inhabitants of Massachusetts 
 can be brought to a better temper." Granting that it was just 
 and reasonable that the assemblies should be required to pay fixed 
 salaries, "they considered the obtention of so desirable an object 
 as beyond their influence or power, because their records demon- 
 strated how often the same measure had been adopted without 
 success." But the privy council determined to persist, and passed 
 an order Alarch 25, 1727, commanding Shute to acquaint the 
 assembly "that if they hope to recommend themselves to the con- 
 tinuance of Your Majesty's royal grace and favor, it must be 
 by an immediate compliance with what has been so often recom- 
 mended to them," viz., the granting of a salary of one thousand 
 pounds sterling. Otherwise "it may be worthy the consideration 
 of the Legislature ... in what manner the honor and dig- 
 nity of your Majesty's government ought to be supported in these 
 Provinces." 
 
 The death of George I vacated Shute's commission just as 
 he was about to return to his province, but his successor, William 
 Burnet, was instructed to the same purport. The necessity was 
 emphasized of compliance to the extent of a fixed salary of £1000 
 sterling, if the royal favor was to be continued, and in case they 
 "shall not pay a due and immediate regard . . . we shall look 
 upon it as a manifest mark of their undutiful behaviour to us," 
 requiring the consideration of parliament how the dignity of the 
 government ought to be supported. 
 
 Burnet's administration was one long controversy between 
 governor and house on the salary question, in which all possible 
 arguments were developed on each side, the governor standing 
 consistently on his instruction, the house with equal determin- 
 ation on its conception of the constitution. Burnet was person- 
 ally attractive, had a reputation for dignity and efficiency as 
 governor of New York, and the house let him know in the 
 course of the dispute that it was not himself personally that 
 they were opposing, but only the constitutional principle he rep- 
 resented. Moreover, the salary question was now hardly at all 
 involved with other constitutional difficulties, as had been the situ- 
 ation under Shute. Hence we may say that the issue was fought 
 out on its ov/n merits.
 
 76 CONSTITUTIONAL CONFLICT 
 
 Arriving in Boston in July, 1728, Burnet made his first speech 
 to the assembly, July 24,^ the occasion of a formal demand for the 
 fulfilment of the requirement of the instruction, which he at 
 once communicated to the general court. He adduced three argu- 
 ments, the wealth of the province, evidenced by its leadership 
 "among the colonies in point of trade and population, and by the 
 magnificent reception they had given him ; the example of the 
 British parliament in granting the Civil List to the king for life ; 
 and the constitutional necessity of a fixed salary, to preserve a due 
 balance of powers in the provincial government, lest if one de- 
 partment of the legislature become unable to support its dignity 
 the whole suffer. He declared his intention as the king's officer 
 ''to act by his instructions and to have no inclinations, no tempta- 
 tions, no bias that may divert him from obeying his master's 
 commands," saying that the instruction should be "an inviolable 
 rule for" his conduct, — the novel element in the situation being 
 that in this declaration he meant what he said, and kept his word. 
 
 After two days' debate, on July 27, the house voted £1700 to 
 Burnet "to enable him to manage the public affairs of the gov- 
 ernment and to defray the charge he has been at in coming 
 hither." As being "the very thing against which the said instruc- 
 tion is levelled," viz., an allowance, not a salary, Burnet declared 
 himself "utterly disabled from consenting," lest he incur the king's 
 displeasure. A week later, August 6 and 8, the £1700 was divided, 
 £300 being granted and accepted'- for the charge of his removal 
 hither, but the remaining £1400, offered "to enable him to manage 
 the public affairs", being refused. The house prayed him to accept 
 it in that form, declaring that : "As the royal charter granted us by 
 King William and Queen Mary of glorious memory has vested in 
 the General Court, the power to impose and levy proportionable 
 and reasonable rates and taxes, and to apply and dispose of the 
 same pursuant to the rights and privileges inherent in us in com- 
 mon with other his Majesty's freeborn subjects ... so we can 
 
 ' For this and following speeches of Burnet, and the replies of 
 council and house, see Council Records and House Journal, sub diebus; 
 also the narrative of the salary controversy, prepared 1iy order of the 
 house April 17, 1729, entitled "A Collection of the Proceedings of the 
 Great and General Court or .Assembly of his Majesty's Province of the 
 Mas.?achusetts Bay." 
 
 'Resolve 1728-9. c. 161.
 
 IN PROVINCIAL MASSACHUSETTS. "JJ 
 
 with all sincerity assure you of our readiness to improve that 
 power in providing for your Excellency such a support as shall 
 be ample and honorable ; at the same time we humbly apprehend 
 that his Majesty's service . . . will be best answered with- 
 out establishing a fixed salary, and apprehending that we cannot 
 in faithfulness to the people of this Province in any other way 
 provide for your Excellency to accept the grant now made and 
 herewith presented not doubting but that this and succeeding as- 
 semblies will at the usual times cheerfully afford a support suit- 
 able to the dignity of your Excellency's person and station." 
 Two days later, vNugust 9, the tvv'o houses agreed in a message 
 to substantially the same effect, remarking also that "we esteem 
 it a great unhappiness that his Majesty should think our method 
 of supporting the governors of this Province a design of making 
 them dependent on the people." 
 
 Here was the issue clearly joined. A fixed salary was utterly 
 refused. The plea was not the poverty of the province ; for £1400 
 v/as an allowance of unprecedented generosity in amount. Objec- 
 tion was based solely on the constitutional privilege of the house 
 to raise and dispose of public money without dictation even from 
 home. The rights of Englishmen, as they understood and applied 
 them to colonial conditions, should justify them in disobeying the 
 instruction. The expression of confidence in the cheerful gener- 
 osity of future assemblies deceived no one, especially as the court's 
 language did not actually deny a design of making governors de- 
 pendent. 
 
 Burnet immediately replied, August 9. Ignoring the am- 
 plitude of the allowance, he said it was not honorable, as it "im- 
 plies no sort of confidence in the government," "making the sup- 
 port of the government depend visibly on an entire compliance 
 v/ith everything demanded by the other branches of the legisla- 
 ture." He declared that it was a well-known, undeniable fact 
 that allowances had occasionally "been kept back till all other bills 
 of moment have been consented to," the allowance depending "on 
 the obtaining such consent," a deprivation of the "undoubted right 
 of an Englishman, which is to act according to his judgment." 
 Therefore he should never accept a present of this kind. 
 
 The houses differed in their manner of answering this mes- 
 sage. The council was still of opinion that the purposes of the 
 taxing power would be best answered without a fixed salary, and
 
 78 CONSTITUTIONAL CONFLICT 
 
 that an allowance made at the beginning of the session implied 
 confidence in the governor, and could not be regarded as an 
 attempt to reduce him to subjection. This matter of balanced 
 powers was taken up more boldly by the house. To follow the 
 instruction would be to give up their money power and make the 
 government "too absolute." Referring to the analogy of the Civil 
 List, they could not have so much confidence in the governor as 
 the parliament in the king; for the king's interest is completely 
 identified with that of his subjects, while neither the prosperity 
 nor the adversity of the province has any effect upon the gov- 
 ernor's interest. Moreover, the dependence of the council and 
 house on the governor in the case of his veto power upon laws, 
 in that of his power of warrant from the treasury, in defence, 
 and in other matters, constitutes "so vastly more than a counter- 
 balance for any possible dependence of the governor upon them, 
 that it cannot be thought that the Commander in Chief can be 
 thereby prevented acting according to his judgment or remain 
 without support, nor has there been any such instance here that 
 we know of." Their frankness went to the extent of saying that 
 as to "past conduct of Assemblys in making the support of the 
 government conditional . . . it is not easy to say what men 
 may have had or had not in their own views and thoughts, but 
 this we can say, that to have done so, as the case might have 
 been circumstanced, would not have been unreasonable in itself, 
 nor without precedent from the Parliaments of England, when 
 some of the greatest patriots and most wise and learned statesmen 
 have been actors in them." As to confidence in the governor, 
 they say, August 31, "the very method itself is founded on 
 nothing else, inasmuch as they [the grants] always look forward 
 and are given to enable the Governor to go on and manage the 
 public afifairs." 
 
 After a dispute carried on for nearly two weeks by conference 
 and message between the two houses, their respective positions 
 were formulated on August 22, the house saying "that passing 
 an act for fixing a salary on the Governor or Commander in 
 Chief for the time being will be dangerous to the inhabitants of 
 this Province and contrary to the plain end and design of the 
 powers granted;" the council declaring, "that the passing an act 
 for fixing a salary on the governor or Commander in Chief 
 without limitation of time may prove of ill consequence to the
 
 IN PROVINCIAL MASSACHUSETTS. 79 
 
 Province," implying what they had declared August 20, "that 
 a salary may be granted for a certain time to his Excellency 
 William Burnet Esquire without danger to the Province," a con- 
 cession in which the house refused to concur. 
 
 Beyond this point little real progress was made, and the argu- 
 ments tended constantly to wander from the main point, to become 
 mere criticism and rebuttal of non-essentials. On August 28 the 
 house expressed a desire for prorogation. The governor replied 
 that the instruction called for immediate compliance with his 
 Majesty's will concerning' a salary, which would become impos- 
 sible in case the court were prorogued. "Therefore I cannot 
 agree to a recess till you have finished this matter for which the 
 Court is now met." 
 
 This attempt at compulsion did not help matters, nor did 
 the threat veiled under Burnet's refusal of their renewed re- 
 quest, on August 29, for prorogation. In announcing his refusal, 
 he spoke of the withdrawal of his Majesty's favor, and said 
 they "would be very concerned to find the Legislature of Great 
 Britain taking into consideration the support of this government, 
 and perhaps something besides, which I forbear to name," refer- 
 ring probably to the "dissolution" of the charter by parliament. 
 This had been hinted at in Agent Dummer's letter of March lo, 
 1722, which he later brought to their attention, a letter in 
 which, by Secretary Carteret's friendly advice, he strongly coun- 
 selled Massachusetts to use more modesty and prudence in con- 
 ducting her defence lest she be dealt with summarily by parlia- 
 ment. 
 
 The house replied on August 31 that whether or not the 
 method proposed was prejudicial to liberty in Great Britain and 
 the other colonies, the "British constitution differing from ours 
 in many respects" and the motives of the other colonies being 
 unknown, Massachusetts could not be influenced thereby. They 
 insisted on their liberties under the charter, as a balance to the 
 powers of the home government. Burnet's message of Septem- 
 ber 2 emphasized skilfully the difference of opinion which was 
 arising between the two houses, but argued that even if they 
 were agreed, that would be a reason the more why the third 
 branch (i. e., the governor) should not be dependent upon them. 
 He taunted them with their low financial credit, proceeding 
 "plainly from the want of a sufficient check in the other branch
 
 So CONSTITUTIONAL CONFLICT 
 
 of tlie Legislature to the sudden and unadvised measures of 
 former assemblies." As to allowances looking forward and 
 therefore implying confidence, he reminded them of the last 
 previous session, when the "method of grants was brought to 
 look directly upon the present business in order to compel a 
 compliance ; or if you like that better, to look backward by way 
 of punishment for a denial."^ 
 
 The next step was an appeal to the country, as it were. On 
 September ii the house adopted an "Advice" drawn by a 
 committee appointed four days previously, "to prevent any mis- 
 representations that may be made to the several towns." Though 
 there was no dissolution and hence no new election at this time, 
 the close connection and intimate dependence between constit- 
 uents and deputy made the house desire to "know the mind of 
 their principals," and to desire still more that "their principals" 
 should know the mind of the deputies, should be correctly in- 
 formed of the doings of the session, and should have a proper 
 apprehension of the arguments supported by the several parties 
 to the controversy. As a conclusion of this "Advice" it was 
 made to "plainly appear that we can neither come into an act 
 for fixing a salary on the governor forever nor for a limited 
 time." Four reasons were adduced, (i) "It is an untrodden 
 path," with many dangers that cannot be foreseen; (2) under 
 Magna Charta Englishmen may raise and dispose of public 
 money without compulsion; (3) it will lessen the dignity of 
 the house of representatives and hence destroy the balance of the 
 constitution ; (4) the house must not betray the privileges of the 
 province, its duty being by charter to make such laws only as 
 they judge for its "good and welfare." 
 
 Burnet did not let this "Advice" go unheeded, but in his an- 
 swer introduced no new argument. On September 21 the house 
 renewed the grant previously offered but not accepted, of £1400 
 "for his support in managing the affairs of the government" and 
 added ii6oo, completing the year's allowance to £3000 in Massa- 
 chusetts money, equivalent to the £1000 sterling which he was in- 
 structed to demand ; but still it was in the obnoxious form that 
 had been hitherto practised, and Burnet announced himself on 
 September 23 "by no means inclined" to assume his Majesty's 
 
 ^ The house had refused to consider allowances, on the refusal by the 
 jieutenant-governor to consent to the act for credit bills.
 
 IN PROVINCIAL MASSACHUSETTS. 8l 
 
 displeasure by accepting the allowance in lieu of salary. He 
 wrote to the board of trade, September 30, that he had no sub- 
 sistence but perquisites from the shipping, amounting to about 
 £200 pounds a year, but that he had refused to accept the three 
 thousand pounds, since it was offered in the old form, "by which 
 they may at any time bring the same difficulties on me that they 
 have on former governors." But, notwithstanding the incon- 
 venience he was suffering, he was so far from desiring leave to 
 depart from the instruction and accept the gift, that he thought 
 "his Majesty's authority in danger of being lost in this country 
 if it be given up in this point." 
 
 Still another heavy weapon the governor tried without suc- 
 cess. He advised the house on October i that their issue of 
 credit bills, upon which depended the province finance, was likely 
 to be disallowed by the home government because of the con- 
 tumacy of the province in the salary affair, and that the surest 
 way to save the issue of credit bills would be to appropriate to 
 the governor's salary a part of the 4% interest on the fund. 
 But, because of the permanence of such an appropriation, the 
 house refused, declaring on October 24 that such a procedure 
 would be equal to fixing a salary, "which is concluded by this 
 House to tend very much to the hurt of the people of this Prov- 
 ince." 
 
 Thereupon the governor adjourned the court for a week, to 
 meet at Salem. His reasons for this move/ given to the board 
 of trade, were that, (i) Boston had instructed its representatives 
 to vote against the establishment of salaries; (2) the people of 
 Boston were continually trying to pervert the minds of the coun- 
 try members upon this point, Salem, on the contrary, being well 
 inclined; (3) Boston did not deserve the profit of the meeting 
 of the court. He desired that the home government should dis- 
 allow the act for bills of credit, and he hoped that parliament 
 would take such action as would at least give the people "just 
 apprehensions of losing" their charter "if they continue refrac- 
 tory." To the court he declared on October 31 that what brought 
 him to the measure was the unanimous declaration of the town 
 meeting of Boston against compliance with the salary instruction. 
 This was taking upon themselves "what his Majesty calls un- 
 
 ' Palfrey, IV. 513. 
 6
 
 82 CONSTITUTIONAL CONFLICT 
 
 dutiful behaviour and attempting to give the law to the country," 
 though in this attempt to influence other towns he had the "pleas- 
 ure to observe that they had very little success." After two weeks 
 the house replied, complaining of the "hardships and difificulties" 
 they were suffering at Salem, resenting the dishonorable impu- 
 tation that they were under the influence of any single town, and 
 declaring that "the reasons that prevailed with them to determine 
 as they had, would go with them, guide and influence them every- 
 where." With the argument that ensued as to the illegality of 
 the court's sitting outside of Boston we are not here concerned. 
 But Burnet assured the house that their desire to return to Bos- 
 ton and their persistent contumacy only confirmed him in his 
 opinion that the Boston prejudices had made deep impressions 
 upon them, which only time and absence would remove. 
 
 He called to their attention moreover the inconsistency of 
 granting no salary to the governor, while the wages of council 
 and house were fixed by law. With bitter irony he asked : 
 "Would it not have been better to have waited till each session 
 was over to see how much every member of either house might 
 deserve by voting with the majority and to allow them wages 
 in that case only, which is exactly the same measure which the 
 house pursued with Governor Shute when they informed him 
 that they expected the bills to be passed before they would go 
 upon allowances."^ Nothing but exasperation could or did result 
 from such a display of temper. 
 
 The next step was the preparation by the house of a me- 
 morial to the king, to justify their course and counteract the 
 effect of the partial statement of the case he had presumably 
 received from the governor's correspondence. They protested 
 loyally that "nothing less than the prosperity and welfare of this 
 your most dutiful Province could have prevailed with us to have 
 done anything disagreeable to Your Majesty's instruction." The 
 familiar arguments were used, such as the opportunity enjoyed 
 by the governor, at a distance from England, to oppress the 
 province unless induced to the contrary by his own interest as 
 well as duty to his Majesty, and the fact that the Civil List at 
 home was for life only. The governor was complained of for 
 keeping the house in session so long at expense to the province, 
 and for the removal to Salem. The unprecedentedly large grants 
 
 ^ Collection of Proceedings, 92-5.
 
 IN PROVINCIAL MASSACHUSETTS. 83 
 
 to Burnet, notwithstanding these actions of his, were mentioned 
 as evidence of a loyal spirit, "and we doubt not but that succeed- 
 ing assemblies according" to the ability of the Province will come 
 into as ample and honorable support from time to time ; and 
 should they not, we acknowledge Your Majesty will have just 
 reason to show your displeasure with them."^ 
 
 The absolute refusal of a salary, and the direct appeal of 
 the house to the king that he withdraw his instruction requiring 
 it, gave the governor an opportunity to put an end to the intol- 
 erable situation — an assembly in continuous session for five 
 months with no legislative work to show for it. On the understand- 
 ing that the dispute was temporarily transferred to the other side 
 of the Atlantic, and that for the present occasion the house had 
 lost its opportunity to show itself dutiful, the court was pro- 
 rogued on December 2.2 to meet in April at Salem. Burnet 
 expected no success in the salary conflict, he wrote to the board 
 of trade, "till a censure of Parliament is passed upon the pro- 
 ceedings of the Assembly which I hope Your Lordships will 
 obtain so as to have it sent early in the spring before this Assem- 
 bly expires."^ 
 
 The home government, as was to be expected, supported 
 Burnet against the appeal of the house. He was unable to obtain 
 a copy of the memorial of the house, but informed himself of 
 the substance of its contents and sent home such answer as he 
 could. The chief burden of this answer was the proposition that 
 "Governors are not the only persons guilty of ambition. The 
 men that afifect to be popular in free nations have better oppor- 
 tunity to get exorbitant power than any Governor, and that it 
 has been such men that have commonly ruined the liberties of 
 their country," — in other words, an arraignment of the house as 
 the tool of its leader, Mr. Elisha Cooke, who is made out to be 
 a selfish demagogue, "a profest enemy to the King's lawful au- 
 thority in this Province." 
 
 The board of trade, in February and March of 1729, took 
 into consideration the memorial and the answer and other cor- 
 respondence, and gave a hearing to governor and house, the latter 
 through its agent Francis Wilks and counsel, the governor 
 through his brother Thomas Burnet and counsel ; the home gov- 
 
 ^ Collection of Proceedings, 97. 
 ^ Palfrey, IV. 518.
 
 84 CONSTITUTIONAL CONFLICT 
 
 ernment was represented by the attorney-general and solicitor- 
 general. The governor's side was defended with no more than 
 the usual arguments. The house advocates, on the other hand, 
 were so bold as even to complain that the salary instruction was 
 invalid, being obtained "without the privity of the people," who, 
 if given opportunity, could have presented such reasons as would 
 prevent his Majesty from giving such an instruction, since it was 
 regarded as "contrary to the charter . . . which gave them 
 a free liberty of passing laws for raising money for the defence 
 and support of the government," — a claim of popular control 
 over the crown's instruction of its agent that must have aston- 
 ished the home authorities by its audacity. On March 27 the 
 board reported its conclusion to the privy council. As to the 
 desire of the house to make the governor "serve his interest" 
 by governing the province well, this suggests on the contrary 
 the "strongest reason" with the board for requiring a permanent 
 salary, viz., in order that the governor may be free to do all that 
 the prerogative interest demands, whether it please the province 
 or not, without fear of losing his support. They propose that 
 he be instructed to insist on a salary of £1000 sterling "by a law 
 settled upon him during the whole time of his government." If 
 the house do not comply, they know no way but that your Maj- 
 esty "lay an account of their conduct before your Parliament." 
 Burnet has acted "with honor and integrity" in refusing the allow- 
 ances offered to seduce him (like former governors) from his 
 instruction. 
 
 The privy council received a report also from its plantations 
 committee on April 22, "that the point contended for was to 
 bring the Governor appointed by his Majesty over them to a de- 
 pendence on their good will for his subsistence, which would 
 manifestly tend to the lessening of his authority and consequently 
 of that dependence which this colony ought to have upon the 
 crown of Great Britain." It was "absolutely necessary . . . 
 that a salary of £1000 sterling per annum should be settled upon 
 the Governor during the whole time of his government." The 
 king should be "humbly advised to order this whole matter to be 
 laid before the Parliament of Great Britain." The committee also 
 observed that Burnet had "acted with the utmost duty to Your 
 Majesty and just regard to the trust reposed in him." The re- 
 port was approved by the privy council on May 22, and it was
 
 IN PROVINCIAL MASSACHUSETTS. 85 
 
 ordered that one of the secretaries of state "receive the pleasure 
 of the crown thereupon."^ 
 
 It is noteworthy here that while this was, as Palfrey calls 
 it, "an absolute approval of the Governor's conduct," it was not 
 an endorsement of his whole claim, but only of the portion of it 
 on which he had the support of the province council, viz., that a 
 salary be laid by law "during the whole time of his government," 
 after the manner of the Civil List granted to the present king for 
 life. It did not go as far as the instruction and insist on a salary 
 for the "Governor for the time being." This may well be the mean- 
 in*^; of Chalmers's statement^ that Newcastle sent Burnet private 
 instructions "to recede from his former demands of a standing 
 salary." For on June 26 Newcastle wrote Burnet that the lords 
 of trade and the lords of the committee of the privy council after 
 full hearing of the case were both "of opinion that the salary of 
 £1000 sterling per annum ought to be settled on you during the 
 whole time of your government." This recommendation of a 
 middle course, however, did not result in any abatement of the 
 terms of the formal instruction. Newcastle's letter transmitted 
 the order in council and said, there is "too much reason to think 
 that the main drift of the Assembly ... is to throw off 
 their dependence on the Crown," that this has produced the final 
 determination of laying the whole matter before parliament, which 
 had certainly been done this last session if it had not been pro- 
 rogued before the report was made to his Majesty. "It will be 
 delayed no longer than the first meeting in the winter." 
 
 At the opening of the April session of the Massachusetts 
 assembly Burnet gave them another opportunity of showing that 
 their "professions of duty and loyalty to His Majesty are more 
 than words." But the house voted not to "come into further 
 consideration of settling a salary on the Governor at the present 
 session," and the time was largely occupied with a dispute between 
 the two houses as to the support of the agents in England, the 
 council refusing to concur in the appropriation because they had 
 not been allowed to participate in the preparation of the memorial, 
 and had not even seen the instructions regarding its presentation. 
 Such agents, they held, must be regarded as responsible to the 
 house alone, and ought not to be supported by the province. The 
 
 ' Palfrey, IV. 519, note. 
 - Chalmers, Revolt, II. 129.
 
 86 CONSTITUTIONAL CONFLICT 
 
 house was also charged with misrepresenting the council's atti- 
 tude. The memorial represented the council as "concurring" with 
 the house, whereas the council declared on April i8 its readiness, 
 signified some time previously, to vote a salary, "for a limited 
 time, having good reason to conclude that His Excellency judged 
 himself at liberty by his instruction to accept thereof, and that 
 thereby all complaints home of our non-compliance with his 
 Majesty's 23d Instruction would be prevented."^ It would be in- 
 teresting to know what "good reason" the council had for this 
 opinion of the governor's willingness to deviate from the terms 
 of the instruction. In all Burnet's public utterances he insisted on 
 strict compliance, and we have no further information. 
 
 On the failure of passage of the resolve of the house to pay 
 its agents, the house could only vote its thanks to certain mer- 
 chants for their advances on that account, and promise to "use 
 their utmost endeavors" to reimburse them later. It instructed 
 the Boston members to compile and publish all the proceedings 
 had thus far upon the salary question, and was then dissolved. 
 The governor refused to sign warrants for payment of the per 
 diem wages of the representatives, declaring that "it may justly 
 appear doubtful," since "near a third part of the time of the sitting 
 of the General Assembly has been rendered useless by your refus- 
 ing to do the business of the Province," whether the towns ought 
 to bear an expense, the sole end of which was defeated."- Prob- 
 ably, however, he did not help his cause by this proceeding ; for 
 the questionableness of its justice gave the individual represen- 
 tatives a very obvious and concrete grievance for exploitation in 
 the election. 
 
 The new house, elected as usual in Alay, 1729, spent short 
 sessions in May and July upon other matters. In the August 
 session Burnet brought up once more the salary question, being 
 now prepared to acquaint the house with the action of the privy 
 council. But the house, willing to take the risk of parliamentary 
 action, merely affirmed its approval of the position of the preced- 
 ing house regarding salaries, probably having private advice from 
 England of the reluctance of the ministers to introduce such a 
 question into parliament. Having been adjourned by the gov- 
 ernor, this time to Cambridge, it made him a grant of £6000 "for 
 
 'Collection of Proceedings, 111. 
 ' Court Records, XIV. 239.
 
 IN PROVINCIAL MASSACHUSETTS. 87 
 
 his support last year, and further to enable him to manage the 
 affairs of government.'' That is to say, they were ready to give 
 him £3000 a year (practically the sum demanded) notwithstanding 
 his harsh treatment of them in adjournment to unusual places, 
 but they would do it only in their own way, by annual grant. He 
 refused it angrily. "If you will not comply with his Majesty's 
 instruction you might at least forbear your endeavour to seduce 
 one of his servants from his declared duty." That day he fell 
 ill from exposure, and a week later he died. The court showed 
 its regard for his person by giving him a sumptuous funeral. 
 
 Lieutenant-governor Dummer immediately assumed the gov- 
 ernment, and announced his determination to insist on the terms 
 of the instruction. Writing to Newcastle on November 4, he 
 described the circumstances of Burnet's death. On the question 
 of "settling a salary- during the governor's time," he said, "there 
 v.T.s but 18 yeas against 54 noes, so that I cannot see the least 
 prospect of having the matter done here ;" "shall press the Assem- 
 bly at our next meeting on this point." At the next session, 
 though the house made a grant of £750 to Dummer, he adhered 
 to his instruction, and refused to accept it. He took the same stand 
 in the case of a grant of £900 at the summer session of 1730, 
 but just then came the news of his supersession. Tailer, the new 
 lieutenant-governor, had no such conscience about his instruction, 
 and consented to resolves^ for the benefit both of himself and of 
 Dummer, who was thereby saved from loss, notwithstanding his 
 fidelity. 
 
 Tlie death of Burnet gave a respite to the ministry in the 
 dilemm.a arising from its disinclination to refer to parliament and 
 its desire to use the threat of such reference as a means of coerc- 
 ing the province. The home government could give the province 
 one more opportunity to obey. If the new governor were skilful, 
 i- was just possible that he might win the point, and at any rate 
 here was a delay during which something might turn up. There- 
 fore afte'r getting the opinion of the agents of Massachusetts on 
 November 6 that they knew of no intention on the part of the Mas- 
 sachusetts assembyq to vary their last resolution, the privy council, 
 on the suggestion of the board of trade, made the follovring propo- 
 sition on November 12 to the assembly. As a natural consequence 
 
 'Resolves 1730, cc. 13, 9.
 
 88 CONSTITUTIONAL CONFLICT 
 
 of the refusal of salary by Massachusetts, and because they seem 
 "in some of their answers upon that subject to have forgotten that 
 decency and respect which is always due to their governors," his 
 Majesty was under the necessity of laying their undutiful behavior 
 before parliament, especially since it appeared that the assembly 
 "for some years last past have attempted by unwarrantable prac- 
 tices to weaken if not entirely to cast off the obedience they owe 
 to the crown." But as personal quarrels may have given a tem- 
 porary bias, their lordships "are for this time willing to interpose 
 with His Majesty ... to suspend his just resentment till 
 their Assembly shall have had one more opportunity of debating 
 the weight of his royal instruction," and the consequence of refus- 
 ing "so reasonable a recommendation." Their lordships propose 
 to the assembly to pass a law "that the salary of their governor 
 for the time being shall be £1000 per annum sterling clear of all 
 deductions and that the said salary be constantly paid out of such 
 monies as shall from time to time be raised for the support of the 
 government and defence of the inhabitants of the said Province." 
 Accordingly it was ordered by the privy council on December 2 
 that "no proceedings be had on the order in council made on May 
 22d last (i. e., for reference to parliament) until the effect of 
 said proposition be known." 
 
 There had been a slight hitch in the arrangement of this prop- 
 osition, and what looks suspiciously like a surrender of their posi- 
 tion by Wilks and Belcher, the agents of the house. On Novem- 
 ber 6 the board had informally proposed to them "since the assem- 
 bly of Massachusetts have already by several acts provided stated 
 salaries for their Council and Assembly men, that they should 
 make like provision of £1000 sterling per annum for their gov- 
 ernor for the time being." The agents had at first answered that 
 without doubt the assembly would comply, regarding this as 
 ^'great condescension and goodness in the government here." But 
 it turned out that by this extraordinary statement they meant "that 
 as the acts providing salaries for their Council and Assembly are 
 near expiring, that when the same should expire the Assembly 
 would for the future provide for the Council, Assembly and Gov- 
 ernor in the same manner, that is, by an annual resolve every 
 session only, and not by act of assembly, nor for any fixed term 
 whatsoever."^ Thereupon the board were about to prepare a 
 
 ' Palfrey, IV. 534, note.
 
 IN PROVINCIAL MASSACHUSETTS. 89 
 
 report on the "obstinate behavior" of the province, the signifi- 
 cance of this dispute for the trade of Great Britain and the 
 authority of the crown, when on November ii the agents "ac- 
 quainted Their Lordships that having reflected upon what passed 
 when they attended the Board the 6th inst., having reconsidered 
 their letters, and apprehending that the death of Mr. Burnet might 
 have abated the animosity of the dispute between him and the 
 Assembly, and have made some alteration in the temper of that 
 Province, they were ready to transmit any proposition to the 
 Assembly that this Board should make to them, and would, as 
 far as was compatible with their stations, enforce the success 
 thereof, and were informed by the Board that they would apply 
 to his Majesty for leave to make them a proposition in writing,^ 
 and would humbly entreat his Majesty to suspend his just resent- 
 ment against the Province until such time as the effect of the 
 said proposition should be known." This readiness to receive and 
 enforce any proposition the board might make is a notable and sur- 
 prising change of heart in the agents. Possibly they had by this 
 time come to a new and more vivid opinion of the danger to the 
 province from the then possible parliamentary action, and hoped 
 that it might be warded off or at least delayed by the change in 
 governor ship. Is it not also possible that just at this point Belcher 
 openly abandoned the cause he had been sent to England to de- 
 fend? This "readiness" manifested itself on November ii, just 
 seventeen days before his appointment as governor. From house 
 agent to governor was an amazing transition, but for a man of 
 Belcher's ambition and easy political morals it was quite feasible, 
 and the price paid for his official advancement, it may be sup- 
 posed, was this treachery to his trust from the house, this readi- 
 ness to urge the demands of the home government. 
 
 As a result of proceedings thus far, the house had now in 
 1730 a situation to deal with that was no better than that of two 
 years before. Belcher's instruction was even more peremptory 
 than Burnet's. Whereas the assembly has neglected the king's 
 condescending permission that Burnet might accept £1000 if set- 
 tled on him for the time of his continuance in office, "whereby 
 they have justly incurred our displeasure," and whereas their 
 conduct would have been laid before parliament but that the board 
 
 ' This is the proposition described in the preceding paragraph.
 
 90 CONSTITUTIONAL CONFLICT 
 
 of trade requested that they might have another opportunity, 
 therefore if a salary (in the original understanding of that term, 
 viz., for the time being) should not be laid forthwith, "you are 
 required immediately to come over to this kingdom of Great 
 Britain in order to give us an exact account of all that shall have 
 passed upon this subject, that we may lay the same before our 
 Parliament, unless you think it for our service to send some one 
 else fully instructed." 
 
 Belcher met the general court September 9, 1730, and in 
 his first speech communicated this instruction, exhorting them 
 after their long heroic struggle not to continue their emulation of 
 Cato Uticensis to the point of self-destruction. Grants were made 
 to him and accepted, of £1000, £500, and 800 acres of land, in con- 
 sideration of his services as house agent ;^ but upon the question 
 "Whether it be the mind of the House to fix a salary on the Gov- 
 ernor of this Province for the time being?" after a long debate 
 the house voted on September 16 in the negative. The following 
 day they passed a resolve granting £3000 to Belcher in the old 
 form, and sent it up with a message declaring that the house 
 "firmly believe that as this so all succeeding assemblies will with 
 the utmost cheerfulness afford an ample and honorable support 
 for his Majesty's government." They absolutely refused the com- 
 promise proposal of the council on October i of a fixed salary 
 during Belcher's continuance in office. On October 7 he wrote 
 home to the board of trade that though it was the busy season 
 when their private affairs call them home "I shall keep them sit- 
 ting till they give a conclusive answer to this grand article." "I 
 have a prospect of their making a dutiful and reasonable return 
 to the proposal." But lacking Burnet's power of will he gave 
 way soon (October 28) to their clamor for adjournment, having 
 won no more than the bill of that same day granting him £2400, 
 which, though no compliance with the terms of the instruction, 
 he regarded as "going a great way further than they have ever 
 yet done, and I think may be taken as a settlement during the 
 present Governor's administration."^ The lords of trade re- 
 marked thereupon that they "are at a loss to imagine how Mr. 
 Belcher . . . could think that this might be taken as a settle- 
 
 ' Resolves 1730, cc. 44, 93, 129. 
 
 ''Belcher to Newcastle, December 10, 1730.
 
 IN PROVINCIAL MASSACHUSETTS. QI 
 
 ment during his government."^ At the new session he succeeded 
 no better, the house declaring January i "after the most serious 
 consideration" of the salary instruction that "we apprehend the 
 House ought not to accede thereto." Belcher dissolved the house 
 the next day and summoned a new one. 
 
 Addressing himself to the new house on February lo, 
 Belcher said that he hoped after the "broils and confusions in 
 which you have been so long and so unhappily involved . . . 
 you are now come together to be the happy deliverers of your 
 country from the troubles and difficulties that still hang over it. 
 . Upon your present determination depends much of the 
 future peace and welfare of this people. . . . Should you 
 oblige me to put in practice that part of my duty to the King 
 in making another voyage to Great Britain there to represent 
 to his Majesty and his ministers your final refusal to support 
 his Governor in the manner he has required, it must produce 
 such consequences to this people as I am sure they will wish 
 they had prevented." But the house knew its man. Belcher had 
 until 1729 been a man of high prerogative principles.- He had 
 changed to become the agent of the house. He had then changed 
 to become the enemy of the house. They now knew him to have 
 only one political principle, viz., to serve himself. Upon this 
 basis they were able to deal with him and win their point. 
 
 On February 12, after consideration of the governor's 
 speech, on the question, "Whether the House would fix a salary 
 upon the Governor for the time being, according to his Majesty's 
 27th instruction ?" it "passed in the negative by a very great 
 majority." The same answer was given on February 17 to the 
 
 ^ Acts and Resolves, II. 633. The bill had merely declared "that at 
 the beginning of the session of the General Court in May next there shall 
 again an Act pass for an ample and honorable support and suitable to 
 the dignity of his station to his Excellency Jonathan Belcher Esq. in the 
 management of the public affairs, and so annually at the beginning of every 
 May session during his continuance in the administration of the afifairs of 
 this government and his residence here." This bill is to be found in Bel- 
 cher's letter to the home governm.ent, December 10, 1730, in Sainsbury 
 Papers, misc. files, Mass. Archives. It evidently does no more than 
 promise an "ample and honorable" support at the beginning of each annual 
 session, but gives no guaranty against variation in that amplitude and hon- 
 orableness of support. 
 
 ''Hutchinson, II. 331.
 
 92 CONSTITUTIONAL CONFLICT 
 
 question, "Whether the House would settle a salar}^ on His 
 Excellency the Governor during his administration?" and on 
 March 9, "Whether they would make any grant for the support 
 of His Excellency for any limited time?"^ That is to say, the 
 house refused even the compromises proposed, which would have 
 contented the board of trade before Belcher's treachery. But on 
 March 4 the house passed a bill in what was equivalent to the 
 old form, "for the support of His Majesty's Governor in the 
 discharge of the honorable and weighty trust reposed in him ;" 
 this was non-concurred by the council the next day. On April 
 I the house observed to the board "that they humbly apprehend 
 a compliance" with the salary instruction would "disserve the 
 true interest of this Province in divers respects." But desiring 
 to give honorable support to the governor, the offer of which 
 he has rejected because of the instruction, "this House esteem it 
 the indispensable duty of the Council and Representatives in 
 General Court assembled humbly to address his Majesty," to 
 show him the reason of the non-compliance, "that so His Excel- 
 lency the Governor may have his Majesty's royal order of leave 
 from time to time to accept the sum or sums that may be granted 
 for his support." Two days later the council accepted the pro- 
 posal, and the procedure was carried through. 
 
 In these circumstances Burnet would have scorned such a 
 proposal.^ But Belcher was made of differenst stuff, and wrote 
 to Newcastle on April 26 that, seeing "no reason to think they 
 will ever do anything further," he desired leave to sign the bill 
 of October 28, 1730, as "a much better security for a Governor's 
 support than anything has yet been done in this Province." At 
 the regular May session of the new assembly the two houses 
 passed what later became the act of 173 1-2, chapter 5, granting 
 £5400 (including the lapsed £2400 of October 28, 1730), "for 
 his past services since his taking upon himself the administration 
 of the government, and further to enable him to go on in man- 
 aging the public affairs."^ Belcher sent this home, weakly ad- 
 mitting that it was "unanswerable" that "there is no prospect 
 of anything to be done here conformable to His Majesty's In- 
 struction." He prayed "the Royal Leave to sign the Bill." A 
 
 ' House Journal, sub diebus. 
 
 " His opinion is indicated in his letter September 30, 1728, above. 
 
 'Acts and Resolves, H. 633.
 
 IN PROVINCIAL MASSACHUSETTS. 93. 
 
 fixed salary ''I am now fully persuaded will never be done tmless 
 by the Legislature of Great Britain." This despair of any better 
 result was the burden of many letters from Belcher to various 
 persons in England.^ Coupled with it was the strong desire of 
 council and house, and, as a consequence of both, the governor's 
 earnest and frequent solicitation th.at he be granted permission 
 to accept the support as the court chose to give it. Belcher, with 
 every means at his disposal, "improved his interest" to move 
 the home government to grant his request. His correspondence 
 is full of complaints and desire for relief f he cannot see that 
 "my returning to Whitehall could be of any service," but only 
 expense ; he believes that "they will not for the future recede 
 from the quantum ;" "Nor can I see the receiving my support 
 as the Assembly will give it can in the least measure prevent or 
 defeat what his Majesty in his royal wisdom may think proper 
 for the effectual enforcing his present Instruction :"" he cannot 
 see the necessity of "starving the Governor till such time as His 
 Majesty shall put his Orders into effectual execution."'* 
 
 The result of this effort was that by orders in council he 
 was granted the royal permission to accept the grants of the 
 general court, at first an order for each bill,^ accompanied by a 
 repetition of the original requirement of fixed salary,^ a tediosu 
 process involving much vexation and expense to Belcher. Finally 
 on November 6, 1735, a general permission to pass the annual act, 
 without reference home for specific orders of leave, was issued. 
 
 'To Newcastle, Belcher Papers, 476; to the lords of trade, ibid, 14, 
 68, 307; to Martin Bladen, ibid, 63; to Townshend, ibid, 92; to Alured 
 Popple, ibid, 469. 
 
 ' To Newcastle, the board of trade, Walpole, the Attorney-general^ 
 the Lord President, hio son Jonathan Belcher, Jr., and his agent, Richard 
 Partridge. Belcher Papers, 6 Mass. Hist. Soc. Coll., VI. 
 
 'Belcher to lords of trade, October 29, 1731. 
 
 ■" Acts and Resolves, II. 633. 
 
 ' 1731-2, c. 5, order in council Nov. 9, Acts and Resolves, II. 633-5. 
 1732-3, c. 11; do. Feb. 21, 1733; ibid, 661. 1733-4, c. 12; do. Jan. 10, 
 1734; ibid, 703. 1734-5, c. 18; do. Nov. 7, 1734; ibid, 746. 1735-6, c. 
 23; do. Nov. 6, 1735; ibid, 790. 
 
 ° Provided nevertheless that this condesention on the part of the 
 Lrown shall not in any wise be drawn into President for the future, nor 
 be in any degree construed to enervate the validity of His Majesty's former 
 Instruction upon this Head." Acts and Resolves, II. 634.
 
 94 CONSTITUTIONAL CONFLICT 
 
 It was a pure surrender. The home government tried to 
 save its face by requiring that the annual act of allowance be 
 passed at the beginning of the session, so that the appearance 
 of compulsion was avoided ; but upon the crucial point, the tem- 
 porary determination of the governor's pay for one year at a time 
 by the general court, the province won a complete victory. 
 Under Shirley, in 1741-2, the question seemed likely to revive. 
 On January 21 and March 27, in successive sessions, he de- 
 manded a regular salary of £1000 sterling, and supported the 
 demand with an elaborate argument. But the house unani- 
 mously declined to follow the suggestion, and upon the newly 
 elected house taking the same position, he accepted their grant 
 in the accustomed form, thus showing that the controversy was 
 at an end. 
 
 The charter power of the purse certainly favored the con- 
 tention of the house. The governor might argue as he pleased 
 about the desirability on general principles of the independence 
 of departments, but the province did not wish an independent gov- 
 ernor. Executive weakness and preoccupation, combined with 
 indifference in the earlier days on the part of the home govern- 
 ment, gave the province an opportunity, that was fully used, to 
 develop a sentiment and a line of precedents for legislative con- 
 trol of executive officers' salaries. When the time of trial came, 
 in 1728, this was found to be too strong to break.
 
 CHAPTER VI. CONTROL OF THE TREASURY. 
 
 Like the mother country/ Massachusetts bought her liber- 
 ties. The power of the purse was a weapon with which she ex- 
 torted privilege after privilege. It is peculiarly important there- 
 fore to describe the shape this power took, its mode of action, 
 and the extent to which its consequences were pushed. We shall 
 c'onsider in this chapter various phases of the dispute between the 
 prerogative and popular bodies, regarding their respective finan- 
 cial functions and powers. The control of the treasury will be 
 considered from the points of view of income, of appropriation, 
 and of audit. 
 
 The raising of revenue, as might be expected in an English 
 community at the end of the seventeenth century, was in all points 
 subject to the consent of the popular body. Taxes, of whatever 
 sort, were levied by the general court, composed of the house, 
 the council, and the governor, acting concurrently. From 1634, 
 almost the very beginning of the history of the colony, the func- 
 tion of tax-levying had been performed not by the assistants alone, 
 even though they were elected by the general court, but with the 
 concurrence of the deputies, who were directly commissioned 
 from their towns, and thus more immediately dependent upon the 
 people. With an experience of fifty years of taxation entirely 
 self-granted, it was hardly to be wondered at that the Andros 
 system met stubborn resistance. Taxes laid by a nominated coun- 
 cil, it was thought, with no sort of dependence on popular elec- 
 tion, were unconstitutional and ought to be resisted, even though 
 equitably levied and no more burdensome than under the old 
 regime. It was for constitutional principle that the men of Ips- 
 wich and Taunton protested and refused to pay council-laid taxes. 
 Here was reason enough for the failure of Andros unless he 
 should be equipped with sufficient force to crush a people stub- 
 bornly attached to what they regarded as their constitutional 
 right. A wise recognition of this fact secured the declaration in 
 the charter that it should be for the general court to "impose and 
 levy proportionable and reasonable Assessments Rates and Taxes 
 
 ' Hallam, Middle Ages, III. 162. 
 
 (95)
 
 96 CONSTITUTIONAL CONFLICT 
 
 upon the Estates and Persons of all and everv the Proprietors and 
 Inhabitants of our said Province or Territory."'^ 
 
 But it was not enough that the consent of the house should 
 be requisite to taxation. From the analogy (however fanciful) 
 between councillors and representatives on the one hand, and 
 lords and commons on the other, the house developed an ideal 
 toward which it strove, an arrangement in which the council was 
 deprived first of the power of initiating, then, at least theoretically, 
 of the right of amending, money bills. Since 1407 the commons 
 had claimed the exclusive right to initiate, and since the Resolu- 
 tions of 1 67 1 and 1678, to amend. ^ So we find the Massachusetts 
 tax bills invariably originated in the lower house. During the 
 first ten years of provincial administration there seems to have 
 been no objection to participation by the council in the framing 
 of the tax bill, by resolution proposing alterations, or by confer- 
 ence between the two houses.^ It became customary for the house 
 to send up "proposals," which the board discussed and perhaps 
 amended, which the house then threw into the form of a bill for 
 passage by both houses. Under Dudley, on November 3, 1702, 
 when consideration was upon the repair of Pemaquid fort, the 
 house refused to confer. The council insisted that the refusal to 
 confer "upon that head or any other affair referring to the gov- 
 ernment is a great infringement upon the rights and privileges 
 of the Council." At this time the house yielded and a conference 
 was held, but with the increasing of the prerogative tendency in 
 the council under Dudley and Shute, the house came to a higher 
 stand on the point, and by 1721 always refused conferences on 
 money bills, as "not a proper subject for conference."* While 
 the council in this later period usually refrained from attempting 
 amendment, at any rate without conference between the two 
 houses, the custom was, when the council suggested amendments 
 whose utility the house could appreciate, for the house to with- 
 draw its former bill and frame a new one, that the precedents of 
 house origination might be unbroken.^ 
 
 ' Acts and Resolves, I. 16. 
 
 ' Medley, English Constitutional History, 279, 280. 
 
 " E. g., December 8, 1692 ; June 15, 1694 ; June 2-25, 1698. 
 
 ' E. g., December 9, 1725. 
 
 "E. g., the excise bill of 1726, Court Records, III. 186-199.
 
 IN PROVINCIAL MASSACHUSETTS. 97 
 
 The form and duration of acts of taxation were such as to 
 ensure popular control. The direct general property tax, the main 
 financial reliance of the government, was granted each year (until 
 1700 usually semi-annually) as a single lump sum in pounds, 
 shillings, and pence, assigned to be paid by each town, after the 
 manner of the "country rate" of the colonial days, which, when 
 it had been once paid, ceased to have any force. This provided 
 some 65 per cent, of the revenue. Some 20 per cent, came from 
 the import and tonnage duties. These duties, though permanent 
 in their nature, continuing practically unchanged from year to 
 year, were nevertheless always limited expressly by the terms of 
 the authorizing acts to the duration of one year. Some 10 per 
 cent, of the revenue came from the excise on wines and spirits. 
 This was passed in acts of varying duration. Until 1716 it was 
 annual, like the impost, with which in fact it was usually joined 
 in one bill. After 1716 it was usually granted for a term of five 
 years, ^ presumably for convenience of administration, and be- 
 cause of its comparative insignificance as a means of financial 
 control. 
 
 For the immediate needs of the treasury, however, in the pay- 
 ment of obligations, the government was much more dependent 
 on the bills of credit, and their authorization came to be regarded 
 as the "supply" of the treasury, while the taxes were looked upon 
 as a fund for sinking them, or more remotely as a means of keep- 
 ing up their credit. The supply was made in a resolve, which came 
 at least twice in the year, but more often in emergencies ; it may 
 even be said that this fact determined the number of sessions a 
 court should hold, since the granting of supply would be regarded 
 by the administration as the main business justifying the holding 
 of a session of the court. Burnet supposed this form of supply, 
 by resolve instead of act, to have been adopted because resolves 
 were not required to be transmitted to England for the approval 
 or veto of the privy council. He argued the matter with the house 
 m 1729,^ and had the better of it for logic and ingenuousness. 
 The practice was explicitly forbidden in Dummer's and Belcher's 
 instructions, and was discontinued after September, 1729. 
 
 ' E. g., Act 1716-7, c. 1. 
 
 ' Court Records, XIV. 273. 
 
 7
 
 98 CONSTITUTIONAL CONFLICT 
 
 It was regarded as a settled principle then that the raising of 
 revenue should be by the representative, not the appointive, body 
 in the government. Whether or not the supreme representative 
 body of the empire should have a part was not questioned practi- 
 cally till many years after the charter was granted, but a hint was 
 given, which might have prepared the colonists for what was 
 to come in 1765. An act was passed by the general court October 
 13, 1692, in which was included the declaration that "no aid, tax, 
 tallage, assessment, custom, loan, benevolence, or imposition what- 
 soever" should be "levied on any of their Majesties' subjects or 
 their estates on any color or pretence whatsoever, but by the act 
 and consent of the Governor, Council, and Representatives of the 
 people assembled in General Court/'^ There is nothing to indi- 
 cate that this was a conscious protest against parliamentary tax- 
 ation, but the privy council, perhaps suspecting colonial insubor- 
 dination and claim of self-sufficiency, disallowed the act, as Chal- 
 mers says, on Chief Justice Holt's advice, "because it contained 
 what none of his predecessors had ever conferred." The reasons 
 of disallowance given in the privy council's letter were the pres- 
 ence in the act of clauses making lands and heritages free from 
 ■'year day and wast, escheat and forfeiture upon death of par- 
 ents," except in cases of high treason," which is repugnant to the 
 Laws of England," and for requiring bail to be taken in all cases 
 but treason and felony, "which with other privileges proposed by 
 the said Act not having been as yet granted by His Majesty in any 
 of the plantations it was not thought fit in His Majesty's absence 
 to allow the same."- 
 
 But leaving aside the question of parliamentary taxation, 
 Massachusetts was, in respect to financial control of the local 
 administration, far in advance of those provinces where the "rev- 
 enue" was fixed for periods of years and subject to no alteration 
 by the legislature during its continuance, and was to that degree 
 in a better strategic position for the constitutional conflict. 
 
 The control of expenditure was a matter of more immediate 
 concern to the conflict between prerogative and privilege. There 
 was more uncertainty about the rights and powers of the two 
 contestants, and more shifting of position in the course of the 
 struggle. Yet the charter provision seemed too plain to leave room 
 
 ' Acts and Resolves, I. 40. 
 ' Ibid, 41.
 
 IN PROVINCIAL MASSACHUSETTS. 99 
 
 for dispute. The taxes raised by the general court were "to be 
 issued and disposed of by warrant under the hand of the Gov- 
 ernor . . . with the advice and consent of the Council for 
 our service in the necessary defence and support of the govern- 
 ment of our said province or territory, and the protection and 
 preservation of the inhabitants there according to such acts as are 
 or shall be in force within our said Province."^ That is to say, 
 the general court should raise money and grant it to the king, who 
 should spend it for the good of the province through the body 
 presumably best qualified for that prudential service, the gov- 
 ernor advised by the council ; but there should be a degree of 
 popular control in that the main channels of outgo, defence and 
 the support of the government, were to be regulated by the gen- 
 eral court. The phrase "according to such acts" evidently meant 
 general provisions, such alone as could be made by a legislature. 
 Payment of the specific obligations which the province should 
 incur under these acts, was to be ascertained and allowed by the 
 executive body, being a merely ministerial, administrative act. 
 Such was the practice of other provinces, at least in the early 
 part of the period.- But Massachusetts, with her past, could not 
 allow the imposition of such a system without a struggle ; and 
 the outcome of this struggle, one of the longest and most stub- 
 bornly fought of all, was a wide divergence from the spirit of 
 the charter and instructions. Massachusetts did not win the form, 
 as she did in the salary dispute, but she won much of the sub- 
 stance. 
 
 The popular ideal, as contrasted with the above system evi- 
 dently provided in the charter, was popular representative con- 
 trol of money, beyond the point of its entrance into the treasury, 
 and of more detailed and specific character than could fairly be 
 indicated by the term legislation. Xot only the raising, but also the 
 spending of public money, should be by the general court ; and 
 in the concurrent action of the two houses, not the council as 
 the charter intended, but the house, should have the preponder- 
 ating voice. The seventeenth century, the period of the self- 
 governing quasi-commonwealth, gave a line of precedents which 
 essentially, though not formally, favored the claim of the house. 
 
 Acts and Resolves, I. 16. 
 Greene, Provincial Governor, 121.
 
 lOO CONSTITUTIONAL CONFLICT 
 
 The "country treasurer" was annually elected^ in the general 
 court of election, and his issuance of money from the treasury 
 might be only upon the command of the assistants or the general 
 court, whose servant he was.' While the assistants were not re- 
 garded as inferior to the deputies in those days, it was because they 
 were recognized as the complete, sufficient depositary of the tradi- 
 tional ideal of the colony. This character having passed largely to 
 the house with the new charter, the assumption by the house of a 
 preponderating influence on the whole financial process, came to 
 be regarded as an object of the utmost importance. Under what- 
 ever form the law might take, an arrangement practically amount- 
 ing to this ideal must be attained. This is not presented as in 
 any degree contravening the legal distribution of powers, but 
 only to put into form the sentiment which seems to have been 
 held by the colonists, and thereby to explain the consistent course 
 followed by the house, of encroachment on the charter powers 
 of the council. 
 
 For the first ten years of the provincial period, the executive 
 as well as the legislature being almost completely under colonial 
 influence, (except in Bellomont's short term), there was little 
 evidence of this spirit. But with the opening of the eighteenth 
 century, and to a constantly increasing degree under Dudley and 
 Shute, we observe the house encroaching on the council's dis- 
 cretionary power of issue from the treasury, making separate 
 legislative acts for the payment of province debts, and confining 
 issues from the treasury to such matters as they had passed upon. 
 The climax was reached under Shute, when in 1721 it was pro- 
 vided in a supply resolve^ that not even the muster rolls accord- 
 ing to legal establishment should be paid until they had been 
 passed upon and approved by the house. From this extreme 
 claim, however, as will be seen below, it became necessary to 
 recede. 
 
 The control exercised by the house throughout the period 
 was twofold — appropriation and audit, the determination first 
 where the money should go, later whether or not it had gone 
 there. These will be considered in turn. 
 
 ' This practice was continued during the provincial period. 
 ^ Osgood, The American Colonies, I. 492, 493. 
 =• Resolve 1721, c. 42.
 
 IN PROVINCIAL MASSACHUSETTS. lOI 
 
 Appropriation was generally understood to be in the power 
 of the general court. Issue from the treasury "according to 
 such Acts" was the charter recognition of it, and another bit of 
 evidence is a representation made by the board of trade to the king 
 April 15, 1697, on the matter of salaries;, where it is said that 
 the revenue of Massachusetts (by the new charter) "is disposa- 
 ble by the Assembly there. "^ The right to originate appropria- 
 tions seems not to have been confined to the house, nor was there, 
 on most occasions, any unwillingness to confer with the council, 
 though we find, e. g., in August, 1728, and October, 1703" in 
 times of heated discussion, the house was unwilling to confer 
 with the council on the bill for the governor's support, though 
 willing to confer "on the subject matter of the bill." 
 
 Three forms of appropriation may be distinguished, first 
 the general terms in the preamble of each supply bill, designating 
 the purpose for which the money was granted to the king; sec- 
 ond, the contingent authorization of expenditure or actual appro- 
 priation in general terms ; and third, specific appropriations, 
 whether in advance or ex post facto. 
 
 The purposes for which the taxes of various sorts were 
 declared to be raised, the first species of appropriation, were 
 necessarily stated in general terms for the most part, but a 
 tendency may be observed to the use of more and more specific 
 language. The tax of 1692 was granted in these terms : "We 
 . being sensible of the necessity of raising moneys for the 
 defence of Their Majesties' subjects and interests and prosecu- 
 tion of the war against their French and Indian enemies, and 
 for defraying of other the public charges of the Province" do 
 give "unto their most excellent Majesties, their heirs and suc- 
 cessors, to the ends and intents aforesaid" a rate or tax. De- 
 fence and the support of the government, then, were the objects 
 to which the public money might be applied. Under this very 
 vague limitation the governor and council were left free to 
 decide in their own discretion upon the specific application. But 
 almost immediately a tendency to greater precision in these sup- 
 ply bills began to manifest itself. A good example of the new 
 sort is the tax of 1697, "providing for the safety and defence 
 of His Majesty's subjects and interests in this Province; for 
 
 ' N. Y. Colonial Documents, IV. 263. 
 ^ Court Records, XIV. 133, 134, 419.
 
 I02 CONSTITUTIONAL CONFLICT 
 
 repairing and setting in order the Castle and fortifications about 
 the same, and farther strengthening and enforcement thereof ; 
 the purchasing of provisions, ammunition, and other stores of 
 war, the fitting, victualling, and manning of the Province Galley 
 and fireship, the hire of transports and other vessels that have 
 been here taken up and employed in His Majestie's service, the 
 subsisting of seamen and soldiers posted in garrisons and sent 
 forth in pursuit of the enemy, and for the support of the gov- 
 ernment, and answering of the incident and contingent charges 
 in and about the same . . . and of other the just debts due 
 from this Province for the payment of such salaries, gratuities, 
 and allowances as have been or shall be made by the General 
 Assembly, and all such allowances and payments as are directed 
 by any act of this Province, to be paid out of the public treasury ; 
 and for the further support of the government, defence of the 
 Province, and prosecution of the war against His Majestie's 
 enemies ; and for no other ends or uses whatsoever." Here v/ere 
 the forms which expenditure for defence and the support of the 
 government might take, well defined. Specific objects were men- 
 tioned, e. g. the province galley and fireship, and the discretion 
 of the governor and council was limited by a prohibition laid upon 
 them of going beyond these authorizations in the terms of the 
 act. The general court granted the taxes, as they were required, 
 to the king, but he was to spend the money for these objects pre- 
 scribed, and "for no other ends or uses whatsoever." The free- 
 dom with which his Majesty might use the gift of his loyal 
 subjects was usually limited either in this way or in the form 
 used in the act of 1699-0/ "to the end beforementioned, and 
 for such other use and uses as shall be limited and appointed 
 by this court and no other." But this phrase was dropped from 
 the tax act of September, 1703, and did not reappear till the 
 famous supply resolve of 1721, when it was the occasion of the 
 dispute that resulted in the reservation by the house of the right 
 to pass muster rolls. 
 
 "Incident and contingent charges in the support of the gov- 
 ernment" was an item of much importance in the list of author- 
 ized expenditures, for the part it played in discussion, if not for 
 its intrinsic importance. Manifestly, for convenience of admin- 
 istration, since the house could not be in session all the time, 
 
 ' Acts and Resolves. I. 386.
 
 IN PROVINCIAL MASSACHUSETTS. IO3 
 
 a certain amount of discretion must be left with the council to 
 pay unforeseen charges (e. g. expresses, and the entertainment 
 of Indian messengers), if effective provision were to be made 
 for the payment of the public debts. The elasticity of such an 
 indefinite term caused the house to regard it jealously, yet we 
 find it included in the supply acts almost uniformly until that of 
 July 3; 1708. From then until the misunderstanding under Shute 
 it was omitted. In June of 1721 the house insisted on a supply 
 resolve limiting the discretion of the council to certain enumer- 
 ated uses "and no other ends or uses whatsoever," 'gaining also 
 the much more significant power of examining muster rolls. 
 The following year the problem was solved finally in the method 
 of the resolve of Alarch 22, 1722,^ a method followed from that 
 time on, which granted £8000 for soldiers' wages and subsistence, 
 £3700 for debts of the province and allovv^ances by the court, and 
 £300 for expresses, "together with all other unforeseen charges 
 whether by invasion or otherwise arising in the recess of this 
 court that demand prompt payment." The troublesome discre- 
 tion should be allowed to the council, but it should extend only 
 over an insignificant part of the budget, three hundred out of 
 twelve thousand pounds (2^%). 
 
 The tracing to its conclusion of the item of "contingent 
 charges" has necessitated a slight anticipation. Coming to the 
 second species of appropriation, viz., the contingent authorization 
 of expenditure in general terms, we deal with what seems to have 
 been the sole appropriative function of the house as contem- 
 plated by the charter. By acts of the general court were regu- 
 lated the rates of pay and subsistence for all branches of the 
 military and naval service — at least after 1696.- The establish- 
 ment of pay for councillors and representatives was also by act ; 
 and, by an inconsistency which Burnet did not neglect to point 
 out, these salaries were practically payable to the office rather 
 than to the man, that is, to the representative for the time being, 
 an impersonal permanence which the house refused to extend to 
 the pay of the governor. 
 
 Casual payments were also authorized, in the shape of 
 bounties, whether industrial, for the slaying of wolves, the pro- 
 duction of hemp, etc., wi.ich were usually permanent; or mili- 
 
 ' Acts and Resolves, II. 235, 236. 
 ^ See below, Chapter VII.
 
 I04 CONSTITUTIONAL CONFLICT 
 
 tary, for enlistment, or Indian scalps, which rested on annual 
 or temporary acts. 
 
 The third and last class of appropriations to be described 
 is the specific allowances. These included first, appropriations 
 in advance, as for public works, bridges, fortifications, pensions 
 to individual soldiers (there being no general pension law), and 
 miscellaneous "allowances" for various purposes ; and secondly, 
 what might be called ex post facto specific appropriation, the 
 ordering of allowances or gratuities to officers of the province 
 (including a gradually expanding salary list), the recompensing 
 of specific services already performed, the paying for goods pur- 
 chased by the province, — in a word, payment of the "debts of 
 the province," one of the general purposes for which, as stated 
 in their preambles, the supply acts were passed. This indicates 
 the relation between what we have called the first and third 
 modes of appropriation. They were not mutually exclusive, but 
 were two different views of one process. The general court 
 granted money to the king for certain purposes. Not content 
 w^ith a greater and greater precision in the general definition of 
 these purposes, it took care to prescribe the modes and the spe- 
 cific forms which these purposes should take, ignoring the be- 
 stowal of this function by the charter upon the council. 
 
 The right to audit the public acounts, as a means of popular 
 control of administration, had been long contended for by the 
 commons of England with varying success, finally complete in 
 1667.^ The representatives in Massachusetts were not slow to 
 develop the same principle ; and against this, if the term audit be 
 interpreted in its usual sense, the home government and its agents 
 had no objection. The right was in fact guaranteed in the 
 charter. The accounts of the treasurer were submitted to the 
 house annually (until 1696 semi-annually), inspected by them, 
 and passed as a resolve of the general court. These accounts 
 were minutely itemized, and the house was thus enabled to find 
 out precisely what payments had been ordered by the governor 
 and council, and, if it seemed necessary, could present specific 
 payments as grievances. The money being gone from the treas- 
 ury, these protests against items as "not according to any act" 
 would have no more eflFect than to furnish the council a guide 
 in future as to the wishes and policy of the house. But they 
 
 ^ Medley, English Constitutional History, 242.
 
 IN PROVINCIAL MASSACHUSETTS. IO5 
 
 served another purpose in giving opinion an opportunity to form 
 itself on specific expenditures, and in showing the house how 
 and where to tie the council's hands by greater precision in 
 future appropriations. 
 
 At one time the house attempted to extend this control and 
 make it more effective by resolving, that if the treasurer should 
 answer such of the council's drafts as were not conformable to 
 the supply act, those items in his account would not be allowed 
 by the house on audit. This would mean the introduction of a 
 second discretion unknown to the charter (viz., that of the 
 treasurer, in whose election the house was predominant), in 
 addition and superior to that of the council, in the interpretation 
 of the acts of supply and the applicability thereto of spec'fic 
 payments. The attempt was strenuously resisted by the council,^ 
 and the outcome was inconclusive. The occasion of this dispule 
 was a vote of the council authorizing certain commissioners on 
 an Indian negotiation to draw on the treasurer for what mig'it 
 be "further necessary" for their expenses, and a second vott^ 
 approving the commissioners' bill of £390, to meet which the 
 council "thought the honor of the government concerned." This, 
 the house thought, looked "little short of a dissolution of the 
 very foundations of our happy constitution;" the council might 
 as well lay taxes ; perhaps if the commissioners had drawn 
 £10,000 the council would have felt in honor bound to order 
 payment.^ The incident was left unclosed, and no more was 
 done about the matter, but the treasurer and council had received 
 the thoughts of the house in no doubtful terms, which was per- 
 haps all that was expected. 
 
 This was only incidental to the settlement, now near at 
 hand, of the whole question of financial control, and the relation 
 thereto of the several governmental organs. 
 
 The passing of muster rolls was the occasion of one of the 
 sharpest of all disputes between governor and house. It was 
 an attempt to establish a double control, for by general laws the 
 wages of officers and soldiers and rates of subsrstence were fixed 
 in advance. The question was only whether or not the actual 
 allowance for payment of this, that, and the other garrison or 
 party of soldiers, should be by the governor and council in the 
 
 'Court Records, XII. 155. September, 1723. 
 'Ibid, 160.
 
 I06 CONSTITUTIONAL CONFLICT 
 
 form of an executive order alone, or by the house, council, and 
 governor in the form of a resolve, followed by the executive 
 order, which was thereby rendered purely perfunctory. As the 
 legal limits of the expenditure were set by the general court in 
 any case, this right was insisted on by the house for the sake of 
 a control not financial but administrative. It was a financial pre- 
 text or cover for an attempt at control by the house over mili- 
 tary affairs, the movement of troops and the size of garrisons. 
 
 Down to 1 72 1 this purely ministerial function of giving 
 approval of the muster rolls was performed by the governor with 
 the advice and consent of the council, according to the plain sense 
 of the charter. The act of 1694, "In Addition to the Act for 
 General Privileges," though disallowed, had its effect on the action 
 of the council for several years, in making the form of their order 
 a little more precise. Each warrant for issue from the treasury 
 had to express particularly the act by which the money was 
 raised and for what particular service under that act the same 
 was designed. 
 
 In June, 1721, at the climax of the dispute between Shute 
 and the house, the latter body insisted on adding to the supplv 
 resolve, after the enumeration of objects for which the supply 
 might be used, the words, "and for no other uses and intents 
 whatsoever." The council protested against such a phrase as 
 contrary to precedent, and as likely to cause inconvenience to 
 administration, "incident charges" not being provided for. But 
 the house would not yield, and the result of a ten days' dispute 
 was a resolve passed July 6,^ which restored indeed to the council 
 the clause providing for unforeseen charges in the recess of the 
 court, but secured the following proviso, an innovation in favor 
 of the house: "The Muster Rolls or any account of charge or 
 expense on the Castle Forts or Garrisons shall not be paid until 
 such Muster Roll or Account of Charge or Expence hath been 
 examined and allowed of by this Court." Thereafter for ten years 
 practically every muster roll appeared in the legislative as well as 
 in the executive records of the council, its action in. the latter capac- 
 ity being purely perfunctory. The house was accustomed to refer 
 the rolls to a committee, which would examine and report that 
 the persons did duty as the rolls set forth, and that the sums 
 should be allowed to the persons therein according to the roll,, 
 
 ' Resolve 1721, c. 42.
 
 IN PROVINCIAL MASSACHUSETTS. IO7 
 
 that the account was "right cast and well vouched," now and 
 then omitting an item from a roll presented, because of the failure 
 of the person entered to serve the time recorded.^ To the coun- 
 cil's suggestion of a joint committee to examine the rolls in order 
 to save time, the house uniformly made refusal.- It was in their 
 opinion the business of the house alone to originate this legisla- 
 tion, and it was for the council and governor merely to concur 
 and consent. 
 
 Shute included this matter as one of the charges in his gen- 
 eral arraignment" of the encroachments of the house, rightly ex- 
 plaining it as a cover for grasping control of the militia. The 
 house defended itself with the disingenuous plea, that it was 
 merely desirous of making sure that the payments on the rolls 
 were for service actually performed according to law, not to see 
 if its orders had been obeyed — ignoring the real issue, that this 
 function of verification belonged by charter to the governor and 
 council. Lieutenant-governor Dummer, who held the chief com- 
 mand in the province during the five and a half years between 
 Shute's unceremonious departure and Burnet's arrival, regarded 
 the new system as a necessary evil, which he must accept and 
 endure, contenting himself with "exhorting" the general court 
 in his speech on May 29, 1724, "in your next supply to his Majesty 
 for the service of this Province to avoid such restrictions as have 
 of late very much employed us."* 
 
 Burnet made a strenuous fight on this issue, but it was over- 
 shadowed by the salary question, and neither matter was settled 
 during his short term. Having early assented to one resolve in 
 the new form,^ he refused his consent, though strongly urged 
 by the house, to the supply resolve in the summer session of 1729, 
 thinking it improper to consent to any form of supply but such 
 as was practiced before 1721.*' He argued that the governor's 
 right as previously enjoyed had been wrested away by the house 
 in 1 72 1, not by act but by resolve in order that it might not 
 
 ^ Massachusetts Archives, XCI. 30. 
 = Court Records, XI. 192, 258. 
 
 ^ Shute's Memorials of August, 1723, and March, 1724. Brit. Col. 
 Papers. 
 
 ' Court Records, XII. 172. 
 ■^Resolve 1728-9, c. 185. 
 'Court Records, XIV. 253.
 
 I08 CONSTITUTIONAL CONFLICT 
 
 be vetoed by the king.^ "This is the very thing that Mr. Att'y and 
 Soil. General observe upon the third article of Governor Shute's 
 complaint."^ Upon Burnet's death the supply resolve was con- 
 sented to by Lieutenant-governor Dummer as presented by the 
 house. But he wrote home for advice/ saying that there had 
 been opposition every year in council, but the "necessity of a sup- 
 ply of the Treasury for the support of the government has 
 weighed with me in the passing of it, as it has bin done for eight 
 years past having no prospect of retrieving that article at pres- 
 ent ; But it seems to me, that the clause in the charter upon which 
 that matter depends, does require an explanation from the Crown, 
 or it will be every year an occasion of further contention in the 
 Legislature, to the prejudice of His Majesty's service and the 
 public good."* 
 
 By Belcher the matter was brought to a final issue, and set- 
 tled, at least formally, in the council's favor. Dummer, in his 
 second term as commander in chief, (that is, after Burnet's death) 
 had been explicitly instructed^ not to consent to the new form of 
 supply resolve ; and the same instruction was continued to Belcher, 
 and was early communicated by him to the house.*^ The preamble 
 to the instruction showed upon what experience the home gov- 
 ernment founded its policy : "Whereas an unwarrantable practice 
 hath of late years been introduced ... of raising money and 
 supplying the current service of the year by a vote or resolve in- 
 stead of by an act of Assembly, and of reserving thereby to the 
 said Assembly a power of determining what accounts shall or 
 shall not be paid even after service performed expressly contrary 
 to the tenor of the charter" — therefore it was required for the 
 future "that no money be raised or bills of credit issued . . . 
 but by Act or Acts of Assembly, in which Act or Acts one or 
 more clauses of appropriation may be inserted, but that the issu- 
 ing of all moneys so raised or bills of credit be left to our Gov- 
 ernor or Commander in Chief of our said Province, with the 
 advice and consent of our Council accordinsr to their charter. 
 
 •Court Records, XIV. 273. 
 
 " Acts and Resolves, II. 574. 
 
 'Resolve 1729-0, c. 68. Acts and Resolves, XI. 435, 306. 
 
 * Acts and Resolves, II. 222. 
 
 "House Journal, May 28, 1730. 
 
 "Court Records, XV. 158-160.
 
 IN PROVINCIAL MASSACHUSETTS. IO9 
 
 subject nevertheless to a future inquiry at the then present or 
 any future Assembly, as to the application of such monies." 
 
 Accordingly Belcher announced, on April 2, 1731, in his 
 speech to the general court that "for the future all accounts of 
 service done for the Province are to be brought directly to the 
 Governor and Council and to them only for passing and paying."^ 
 The house did not let this go without answer, and sent a message 
 on April 20,- arguing that the house had a right to pass accounts, 
 because there would otherwise be no means of stopping illegal 
 payments. As to precedents before 1721, it was said that imme- 
 diately after the coming of the charter "accounts were passed on 
 for payment by the House after service performed and common 
 accounts of wages and subsistence not called muster rolls were 
 not only brought originally to the House for their inspection and 
 allowance, but were also sent down for that end by the Hon, 
 Board," and also every year since, as was shown in the minutes of 
 the proceedings, annually sent to England by the secretary, and not 
 hitherto discountenanced by the home government. It was true, 
 as has been shown above, that the house had been receiving and 
 passing accounts for service performed, but these had been specific 
 appropriations for objects not otherwise provided for, and had not 
 been, like muster rolls, mere authentications of accounts already 
 made legal by previous act. 
 
 Here we see the issue defined, and the parties in position. 
 In April, 1 731, with great reluctance the house granted a supply 
 of £6000 according to the instruction, omitting the clause which 
 would have restricted drafts to accounts passed by the house,^ 
 but thereafter they refused to depart from their previous position. 
 In contrast with his vacillation on the salary question, the gov- 
 ernor was firm in this case, and the resulting deadlock continued 
 for two and a half years. Though the lack of supply caused great 
 hardship to the creditors of the province, this did not affect the 
 governor's pocket, as the general court could and regularly did 
 make special supply for his salary allowance. Perhaps for this 
 reason he could more clearly see the constitutional significance 
 of the issue. Firm before the house, he also steadfastly advised 
 
 ' Court Records, XV. 57. 
 =' Ibid, 67. 
 ^'Ibid, 78.
 
 no CONSTITUTIONAL CONFLICT 
 
 the home government to persist. He wrote to Newcastle/ "All 
 the struggle in that matter is for power; if every account of the 
 Province must be subjected to a House of Representatives the 
 King's Governor will be of very little signification. They that 
 have the control of the money will certainly have the power, and 
 I take the single question on this head to be whether the King 
 shall appoint his own Governor or whether the House of Repre- 
 sentatives shall be Governor of the Province."^ This was only 
 two months after the house had shown equal determination in a 
 vote on November 3, by 56 to i, that a relinquishment of the 
 ground taken by the house "would necessarily tend to destroy the 
 powers and privileges granted to the General Court in and by 
 the royal charter."^ Moreover, on November 24 the house had as- 
 sured the governor "that as long as this Assembly retain any re- 
 gard to the great trust and confidence our electors have put in us, 
 all efforts to persuade and induce us to forsake their true interest 
 and bring them and their posterity under the weight and burden 
 of such innumerable and inconceivable inconveniences as they 
 firmly believe may soon be their lot and portion should the House 
 give in to the aforesaid Instruction" would be fruitless. 
 
 Three times in vain did the house appeal home for the with- 
 drawal of this instruction, which the governor alleged to be an 
 insuperable bar to his passing supply in the form desired by 
 the house. On passing the supply of £6000 in April, 1731, in 
 terms which were in accordance with the instruction, an ad- 
 dress to the king was formulated by the house, and in June 
 another address was sent by the house and council together, pray- 
 ing for the removal of this bar. But the privy council on De- 
 cember 23, 173 1, advised the king to adhere to the instruction. 
 At the end of 1732. on December 14, the houses voted concur- 
 rently to address his Majesty again, "and in case the address have 
 not the desired success that a memorial be laid before the Hon. 
 the House of Commons if sitting, praying their intercession with 
 his Majesty that he would be graciously pleased to withdraw the 
 instruction." This appeal to the commons aroused Belcher's in- 
 dignation. He said it was "without precedent among the planta- 
 tions ;" there was no occasion "for treating his Majesty so inde- 
 
 ' December 26, 1732. 
 
 ' So also he wrote to Walpole January 1, 1733. Belcher Papers, 493. 
 
 ' Palfrey, IV. 543, note.
 
 IN PROVINCIAL MASSACHUSETTS. Ill 
 
 cently and disrespectfully." Considering that it was only inter- 
 cession that was desired from the commons, it might be questioned 
 whether there was disrespect in the form, but without doubt the 
 intention was to bring political pressure to bear upon the ministry. 
 In any case it was fruitless ; for the commons manifested their 
 disapproval, and in an order in council of May lo, 1733, the king 
 signified his "high displeasure" at these repeated applications, 
 and the instruction was ratified and confirmed.^ 
 
 The plantations committee of the privy council obtained 
 the opinion of the attorney-general and solicitor-general, that 
 the instruction was "perfectly agreeable" to the charter ; as to the 
 issue of money, "the words of the Charter are very plain," that 
 it be by governor and council, meaning "according to such gen- 
 eral clauses of appropriation, describing the nature of the serv- 
 ices for which it was given, as should be mentioned in such acts 
 but not to restrain the Governor and Council from making such 
 a distribution upon the particular articles of those services or 
 from passing the accounts and paying the persons by whom such 
 services should be performed in such manner as they should 
 think fit consistently with the general clauses of appropriation. 
 But such distribution of accounts and payments will be subject 
 to future inquiries to be made in a regular method by the Assem- 
 bly or House of Representatives as to the application of the 
 money and the consistency thereof with the appropriating clauses 
 for which a proper reservation is made by the instruction. "" 
 The committee reported that the persistence of the assembly 
 "evidently shows that their desire is to assume to themselves the 
 executive power of the government of the said Province, and 
 has a direct tendency to throw off their dependence upon Great 
 Britain, which is so necessary to be maintained even for their 
 own preservation," a notable insight into the essential character 
 of the dispute. 
 
 Another check, moreover, was received from the agent of 
 the province in London. Wilks had written on October 23, 
 1732, that he had been having conversation with several distin- 
 guished persons, friendly to Massachusetts, including the Lord 
 President of the Council, and that they all thought the province 
 in the wrong on this matter. It was his advice that the province 
 
 'Palfrey, IV, 545, note. 
 ' Acts and Resolves, II. 702.
 
 112 CONSTITUTIONAL CONFLICT 
 
 address the king for relief from the ill consequences of such a 
 procedure as the instruction required, rather than insist too 
 strongly on the right. He seemed to fear a possible untoward 
 result from too great obstinacy. "I with great submission ofifer 
 my thoughts that it would be most wise and prudent for the 
 General Court to settle the matter without its being brought into 
 a dispute with the Crown on this side than afterwards to com- 
 ply." Belcher used this to intimate to the general court a pos- 
 sibility that the deplorable undefended state of the province, due 
 to the lack of money which the general court should supply, 
 might lead to the king's "taking the necessary care for support- 
 ing his forts and garrisons as well as every other part of his 
 government." In other words, if the house insisted on too much, 
 it might lose every part of its control over the executive. As 
 usual, Massachusetts stopped just short of the danger line. 
 
 Now that all hope of the withdrawal of the instruction was 
 gone, the house must choose between a compliance therewith 
 and a further continuance of an intolerable situation. The treas- 
 ury had now been empty for more than two years, and the debts 
 of the province amounted to tens of thousands of pounds. The 
 province could pay and wished to pay its debts, and repeatedly 
 passed bills of supply sufficient therefor, but the governor was 
 unwilling to allow it to pay its debts except in this form obnox- 
 ious to the house. It became evident that the governor would 
 not yield, and it was not the governor but the undefended prov- 
 ince that was suffering from a continuance of the quarrel. The 
 result was the passage at last, in October, 1733, of an act grant- 
 ing a supply of £76,500, from which was omitted the long pro- 
 tested clause that would have restricted its issue to warrants 
 passed by the house.^ It was accompanied by a long message, 
 in which the house protested against the reception of this action 
 as a precedent in prejudice of their right. Since there had been 
 no general supply since September, 1730^ (over three years), 
 "considering that great distress and difficulty are like to rise from 
 an empty treasury," the representatives, "out of their great zeal 
 for his Majesty's honor and service and their earnest desire to 
 preserve the public peace and quiet of the government, to dis- 
 charge the debts and to render to everyone their just due, have 
 
 ^ Act 1733-4, c. 7. 
 " Act 1730, c. 3.
 
 IN PROVINCIAL MASSACHUSETTS. II3 
 
 judged it more convenient to suspend the exercise of their right 
 of examining accounts before payment in the present supply." 
 They declare their continued behef, nevertheless, "that the royal 
 charter doth empower the General Court to reserve to themselves 
 [in the act for supply] the examination of accounts and in it 
 to direct that money be paid out of the Treasury for the dis- 
 charge of such accounts only of service performed as are allowed 
 by the whole court," "leaving the exercise thereof to be assumed 
 by any future Assembly." 
 
 The house was defeated, but not routed. The concessions 
 yielded to them in the instruction were realized to the full; and 
 broadly construed. The right of the house was retained, to audit 
 the treasurer's accounts after payment and to complain of griev- 
 ances in the warrants passed by the council ; and considering 
 that the treasurer was elected by joint ballot, in which the house 
 was predominant, here was a substantial guaranty against op- 
 pression. It was true, as the house complained, that the passage 
 of accounts by the council would require only four favorable 
 votes, a mere majority of a quorum of seven, whom the gov- 
 ernor might choose out of the twenty-eight members. But 
 experience gave no reason to fear corruption, or application of 
 money contrary to the laws, which were still the limit of the 
 council's discretion ; and there was always the political control 
 annually exercised in the election by the general court, so that 
 the governor's supposed four corrupt appropriators of the rev- 
 enue couTd easily be dropped out by the house at the next election. 
 
 But far more significant was the use now made (and hence- 
 forth in all supply acts) of the clause in the instruction which al- 
 lowed "one or more clauses of appropriation." For example, the 
 act of 1733^ granted to the king £76,500 "for the necessary defence 
 and support of this government, and for the protection and pres- 
 ervation of the inhabitants thereof/' in thirteen items, whose 
 funds were non-transferable, and which were remarkable for 
 their extremely detailed provision, adopted apparently to exclude 
 expansion at the council's discretion, viz. (i) £8,162: 12s. for 
 wages and support of the Castle garrison" "and no other use 
 whatsoever," the number of officers of each rank and of soldiers 
 being specified ; seven other items of the same sort, for the "coun- 
 
 ' Acts and Resolves, II. 690. 
 
 8
 
 114 CONSTITUTIONAL CONFLICT 
 
 try sloop" and six enumerated forts ; (9) £26,589: 6s. for "grants 
 made by this court, and stipends established by law, and nothhig 
 else;" (10) £15,063 :4s. for debts of the province "to persons 
 who have served them by order of this court, in such matters 
 and things where there is no establishment ; and also for paper, 
 printing and writing for this court, the expenses of committees, 
 public entertainments, the entertainment of Indians and pres- 
 ents made them," the governor's visit to Saco, Province House 
 repairs, indents, surgeons' accounts, supplying the forts with 
 wood, Court House repairs, expresses, expense of a council 
 committee to Rhode Island, repairing the Light House boat, 
 treasurer's disbursements for forts, truck-houses, and the sloop 
 in the country's service, and surveying new towns ; ( 1 1 ) £6500 
 for wages of the representatives; (12) £2500 for wages of coun- 
 cillors; and (13) £1000 for "contingent and unforeseen charges 
 that demand prompt payment." That is to say, as a result of 
 this conflict, the house had lost its usurped right to audit muster 
 rolls, which was little more than a form ; but on the other hand 
 it had allowed the council to issue warrants only within precise, 
 narrow limits for detailed purposes, thus turning into a mere form 
 the warrant power derived to the council by the charter. 
 
 Such was the system of financial control in the province, a 
 wide departure from the evident intention of the charter, but the 
 natural result of a half-century of competition between two 
 bodies, of which one must remain on the defensive, the other 
 might use its great original power to make an active campaign 
 and win additional powers. It was the house, then, that held 
 the purse of the province, raising the public money by taxation- 
 laws matured in its own wisdom, subject to the concurrence 
 of council and governor ; spending the public money for purposes 
 which were determined in full outline by itself, and in detail by 
 a body politically dependent upon it ; finally, auditing the ac- 
 counts of the expenditure, thereby completing a process in every 
 step of which the people's money was virtually under the control 
 of the people's representatives.
 
 CHAPTER VII. CONTROL OF MILITARY AND DIPLO- 
 MATIC AFFAIRS. 
 
 One of the most vital functions of colony government was 
 defence, and the dispute between royal and popular sovereignty, 
 or at least the struggle for practical control, extended not un- 
 naturally to this important field. Colonial experience had accus- 
 tomed Massachusetts to control of all military matters directly or 
 indirectly by the popular will ;^ including regulation by law of 
 the general court, appointment of officers by the court of election 
 or the general court, and supreme command by the popularly 
 elected governor and assistants. Tlie normal provincial govern- 
 ment on the other hand, quite as much as a matter of course gave 
 this control to the governor, the agent of the crown, and 
 his appointees." In the general compromise between the two 
 systems, embodied in the second charter, military functions were 
 divided between the two powers. The governor as commander 
 in chief was the military head of the province ; but the power 
 of the purse, and the right to make laws (including militia and 
 military laws) belonged to the assembly, and these powers tended 
 to expand till they involved in a considerable degree the power of 
 the sword, so dependent on the power of the purse in days when 
 the support of soldiers and the building of fortifications must be 
 financed largely by direct taxes, whose burden was very keenly 
 felt. 
 
 As in the colony days, the system of defence was essentially 
 a militia system depending on the assize of arms, with universal 
 obligation to service, rather than a military system depending on 
 a standing army; and the approximation to the latter which was 
 necessitated by the French and Indian wars was regarded as tem- 
 porary, resting as at home on annual acts, that the subjection of 
 the military to the civil power might be ensured. Thus the matter 
 naturally became one phase of the tendency to subordination of 
 the executive to the legislative power. 
 
 ' Osgood, The American Colonies, I. 521. 
 'Ibid. II. 378. 
 
 (115)
 
 Il6 CONSTITUTIONAL CONFLICT 
 
 By the charter the governor received "full power ... to 
 train . . . and govern the militia . . . and for special 
 defence ... to put in warlike posture the inhabitants . 
 to lead them ... to encounter . . . destroy and conquer 
 . . . all . . . such . . . persons as . . . attempt 
 . the destruction ... or annoyance of our said Prov- 
 ince . . . to . . . exercise the law martial in time of 
 actual war and also ... to erect forts . . . and the 
 same to furnish with all necessary ammunition, provisions and 
 stores of war."^ Yet the whole militia system rested on a law of 
 the province, passed by the assembly and assented to by the gov- 
 ernor in 1693, which went into great detail regarding the liability 
 to service, the arms required, the view of arms, the frequency of 
 trainings, the manner of appointment of officers, — all practically 
 a continuation of the colony system.- This was supplemented by 
 a law of 1697,^ empowering officers to pursue the enemy, provid- 
 ing for calling their regiments together on alarm, enjoining obedi- 
 ence to superiors. The principal innovations of the provincial 
 system were that appointment of commission officers was to be 
 no longer by the general court, nor even by the governor and 
 council, but by the governor alone ; and that while the command 
 of the forces was still in the governor, that officer was now a 
 royal, not a colonial, functionary, control thus being exercised 
 from above, no longer from below. 
 
 The embodiment and organization of the military forces on 
 a war footing was a different matter. The supreme command 
 was in the governor by virtue of the charter, and the gov- 
 ernor in this respect might be viewed from above as a part 
 of the imperial military system conmianding the English 
 forces of Massachusetts, as well as from below, as the military 
 head of the colony organized for self-defence. Ideally, for the sake 
 of the military dependence of the colonies, the former aspect 
 should have been emphasized, the governor defending the colony 
 by means of imperial troops paid and directed from home, to whose 
 support the colony would contribute proportionately, but indirectly 
 through the British treasury. Bellomont saw this point, and was 
 in theory opposed to the colony's defending itself, seeing that the 
 
 ^ Acts and Resolves, I. 18. 
 ' Act 1693-4, c. 3. 
 'Act 1697, c. 1.
 
 IN PROVINCIAL MASSACHUSETTS. II/ 
 
 independent spirit of colonial self-sufficiency would be fostered by 
 the consciousness that its defence depended upon itself without the 
 help of the home government. But whatever the imperial ideal, 
 the actual fact was that the colony defended itself, raised its own 
 troops, regulated them by its own laws, paid them wages and 
 supported them, and only incidentally used the governor as com- 
 m.ander in chief. 
 
 Not only the command of the troops but also the appointment 
 of military officers, was in the hands of the governor, and this 
 lacUjr act was one of the very few which he might perform with- 
 out the advice and consent of the council. It was his peculiar 
 function, and the house made no encroachment upon it, except in 
 the misunderstanding under Shute and Dummer, when on several 
 occasions interference by the house took the form of desiring 
 the governor to remove an officer for alleged dereliction of duty. 
 
 Forces were organized in accordance with acts of the gen- 
 eral court, and the means used to keep control of the army 
 and ensure subordination of the military to the civil power was 
 the familiar English one of annual acts. The establishment of 
 military discipline and the authorization of courts martial for en- 
 forcing it, depended on acts passed with a time limitation, usually 
 one year, which were omitted in time of peace. The first one 
 was passed in 1700;^ hence it is to be inferred that until that data 
 this had been a power uncontrolled in the hands of the governor 
 and assistants, who were still regarded as a popular body. A pre- 
 cise definition of crimes in this jurisdiction was not made until 
 1704,- when penalties v;ere assigned by an act of the court, 
 which left a good deal of discretion to the commission officers, 
 but safeguarded the rights of the individual before the court 
 martial. 
 
 There was a considerable body of legislation of much the 
 samie nature, upon which the efficient prosecution of a war de- 
 pended, which was at first passed in tlie form of annual acts, some- 
 times even for a shorter period. It was omitted in time of peace. ^ 
 These acts (i) offered bounties for Indian scalps or captives; (2) 
 
 'Act 1699-0, c. 21. 
 
 'Act 1704-5, c. 7. 
 
 ^ In Dummer's time the legislation was passed to continue in force 
 during the war, this laxness being made endurable by the control the house 
 was then enjoying over the passage of muster rolls.
 
 Il8 CONSTITUTIONAL CONFLICT 
 
 forbade desertion of the frontiers by the inhabitants of the towns, 
 except under Hcense ;^ (3) permitted the governor and council to 
 transport the mihtia out of the province for the defence of neigh- 
 boring colonies;- (forbade arrest of bona fide soldiers for debt ;^ 
 (5) provided for levying soldiers, described the method of im- 
 pressment, time during which pay should run, etc. f (6) prescribed 
 the procedure in issuing supplies and pay.^ By making these 
 acts temporary, and of no force in time of peace, the practi- 
 cal result was secured that the power of making peace and war 
 was in the general court, since no war could be carried on (be- 
 yond the mere rendezvous on sudden alarm) without these acts, 
 and for their passage a general court was necessary ; and by means 
 hereafter to be described the passage of these acts might be made 
 the price paid for yielding to the general court a considerable 
 measure of control over the troops thus authorized. 
 
 Almost from the very first, the pay of officers and soldiers 
 was fixed by the general court. Until 1696, it must have been 
 by the governor and council ; for there is no mention of the matter 
 among the acts and resolves of the court. Presumably the old 
 scale of wages customary in the colony was continued without 
 question, the governor and council merely supervising the auto- 
 matic application of that law to the muster rolls of garrisons and 
 companies of soldiers. But with the change in the value of money 
 consequent upon the issue of credit bills in 1690, and with the 
 more frequent calls for soldiers in King William's wars and the 
 additional inducements required to be offered to soldiers enlist- 
 ing, some change soon became necessary, and considering the 
 jealous regard of the house for the appropriating function it was 
 to be expected that so large an item as soldiers' wages and sub- 
 sistence would be brought under the control of the body claim- 
 ing the right to dispose of the people's money. In 1694 a bill 
 establishing a detailed schedule of pay for privates and officers, 
 and rates of subsistence, was passed by the house and concurred 
 in by the council. The bill failed to pass, however, owing probably 
 to the opposition of the lieutenant-governor, in defence of what 
 
 'E. g.. Act 1694, c. 25. 
 'E. g., Act 1694, c. 11. 
 'E. g., Act 1704-5, c. 10. 
 'E. g.. Act 1693, c. 9. 
 " E. g., Act 1703-4, c. 7.
 
 IN PROVINCIAL MASSACHUSETTS. II9 
 
 he regarded as his mihtary prerogatives.^ Substantially the same 
 bill came up in 1696 and was passed, the occasion having been the 
 dispute on the pay of Captain Church's men, who, relying on the 
 promise of the council, expected more pay than the house was 
 willing to give.^ From now on the establishment of wages was a 
 recognized function of the general court. The resolve of 1696 
 was to continue in force only twelve months, but none was passed 
 at its expiration, and it was presumably followed as the "customary 
 wages" until further positive action should be taken. Dudley seems 
 to have regarded this, as he did all action of the house in military 
 affairs, as mere advice ; and while he might or might not follow 
 their advice in other matters, he was careful to follow it in such 
 an affair, where by refusing to pass supplies they could thwart 
 him. He would be especially ready to follow their advice here, 
 as the soldiers' pay was a thing which it would be the interest 
 of the house to keep up to the highest point demanded by efficiency 
 in enlistment. So in 1703-4, when the house passed a new estab- 
 lishment,^ though there is no evidence that the council and gov- 
 ernor took final legislative action upon it to make it a resolve, 
 yet it was followed as authoritative in the passing of muster rolls. 
 
 As a matter of course, bounties and special gratuities to sol- 
 diers w'ere originated by the house, being in addition to the ''ac- 
 customed" or legal wages. 
 
 The passage of muster rolls (1721-1730) was a species of 
 double control exercised by the house over the pay of soldiers, 
 ostensibly in order to assure itself that the pay was delivered ac- 
 cording to law ; actually in order to give the house an opportunity 
 to condemn a policy already carried out, that the governor might 
 in future avoid policies displeasing to the house. (Chapter VI.) 
 
 Direction of military affairs is naturally an executive func- 
 tion. In the colonial period the movement of troops and the 
 assignment of garrisons had been the function of the governor 
 and assistants, efificiency and definiteness of responsibility being 
 thus gained without sacrifice of liberty or of civil supremacy 
 over the military ; for the assistants were primarily a civil body, 
 and the councils of war which assisted them on occasion v/ere 
 elected by the general court, which defined their functions and 
 
 ' Acts and Resolves, VII. 534. 
 * Resolve 1696-7, c. 56. 
 'Resolve 1703-4, c. 76.
 
 I20 CONSTITUTIONAL CONFLICT 
 
 absolutely controlled them. The language of the provincial char- 
 ter was plainly in favor of the royal governor as the director 
 of military affairs. He it was who should "assemble in martial 
 array and put in warlike posture the inhabitants, lead and con- 
 duct them to encounter, expulse, repel, resist, and pursue by force 
 qf arms" persons enterprising the destruction or annoyance of 
 the province. In words the house acknowledged this; neverthe- 
 less, in actual practice the first forty years of the province was 
 a period of continual encroachment by the house upon the 
 governor's prerogative — a prolonged effort, by the use of the 
 power of the purse, to grasp that of the sword. It will be con- 
 venient to consider first the forms of this increasing participation 
 of the house in military affairs, secondly the means by which this 
 encroachment was made, and thirdly the situation in Shute's ad- 
 ministration, at the climax of encroachment. 
 
 From the very earliest times the governor was accustomed 
 to receive the advice of the house on these matters. Not a small 
 number of the members were militia officers, and the localized 
 representative system brought men together, with intimate knowl- 
 edge of the military situation, from all parts of the province, 
 even from the frontiers ; so that its advice was peculiarly valuable 
 for the common cause of defence. Not unnaturally, then, the 
 custom grew up under Phips and Stoughton, both of whom had 
 been trained under the old system, of regarding representatives 
 and assistants together as one grand council of war, to which 
 should be referred intelligence from the seat of war and cor- 
 respondence with the other colonies, and from which should be 
 expected the maturing of plans based on the local knowledge at 
 its disposal. But the line was difficult to draw between this valued 
 advice, and actual command, or the authoritative responsible di- 
 rection, which undoubtedly belonged to the governor alone. The 
 governor at all times regarded the expression of the will of the 
 house upon military matters as mere advice which he might or 
 might not follow. Dudley not infrequently told the house as 
 much, but so long as he actually followed the advice, he was 
 giving strength to a line of precedents which it became more 
 and more difficult to break. Gradually, in the first two decades 
 of the provincial period, the house got into the habit of (i) 
 assigning periodically the numbers of soldiers who should be 
 posted at the various garrisons and forts; (2) detailing the
 
 IN PROVINCIAL MASSACHUSETTS. 121 
 
 plans of campaign, determining to what places bodies of troops 
 should be sent, and the number of men of whom they should be 
 composed. In 1723, in fact, the house made an attempt to have a 
 joint committee appointed, to sit during the recess and conduct the 
 war. Nacurally the council non-concurred, and that was the end 
 of the effort. But the attempt to assign troops to garrisons and ex- 
 peditions could be more easily justified from the superior local 
 knowledge of the representatives, and at least on one occasion, 
 September 8, 1721, Governor Shute of his own motion invited it. 
 Such dispositions were made nominally by the governor, the 
 liouse "desiring his Excellency to give orders" thus and so. But 
 for all practical purposes the will of the house was law to the 
 governor. 
 
 The control of the purse was the means used by the house 
 to secure this power. Expeditions might be determined upon by 
 the executive, the number of soldiers needed at the garrisons 
 might be decided by his discretion; but the expedition could not 
 be undertaken, nor the garrison maintained, without provision for 
 pay and subsistence. The right to vote pay and subsistence was 
 the weapon of the house, and it was used with its whole weight. 
 If the determination of the governor as to military policy was 
 contrary to that of the house, pay and subsistence could be re- 
 fused and the governor would be powerless. On emergencies 
 the governor would call out the militia to answer an alarm, and 
 then expect the assembly, by whose tacit consent he had done so, 
 to support the soldiers ; but no active exertion of force such as 
 an expedition against the enemy's position, and no permanent 
 military expenditures such as those entailed by the maintenance 
 of garrisons, could be made contrary to the will of the house. It 
 is true, the actual conduct of military affairs was largely by the 
 governor, because, as being a single functionary, in whom 
 responsibility could be concentrated, he was the most suitable 
 agent of the house, according to the familiar necessity in military 
 operations ; but it was as agent of the house that he acted, not 
 of his own right and prerogative, and in the last resort decisions 
 had to be made by the house, for the reasons already stated. 
 
 Even in his action as agent of the house he was limited 
 in ways that must have been vexatious. For example, to limit 
 the size of parties he might send out, it was sometimes provided 
 in the resolve allowing pay that the pay of no officer above the
 
 122 CONSTITUTIONAL CONFLICT 
 
 rank of sergeant or captain, should be allowed by authority of this 
 resolve.^ 
 
 The same principle applied in the control of defensive forces 
 in garrison. If the house was of opinion that a certain post 
 maintained by the governor was unnecessary or not of sufficient 
 utility, it would declare its pleasure that the pay of that garrison 
 be stopped. The matter came to an issue under Dummer in 
 1723, immediately after Shute's departure. He reproved the 
 house for its attempt to assume the military power of the exec- 
 utive in presuming to "draw off the forces;" whereupon the house 
 answered him that it meant not to "draw off the forces," which 
 was the function of the commander in chief, but only to "draw off 
 the pay and subsistence of the forces," a difference which de- 
 ceived neither the house nor the lieutenant-governor, but which 
 illustrates the friction necessarily resulting from the governor's 
 nominal exercise of a military power that was practically con- 
 trolled by the house. 
 
 Out of the practice of examining intelligence from the 
 frontier, it progressed to desiring to examine the journals of the 
 commanders of expeditions, and later, after continued ill-success 
 in this encroachment in Shute's time, to requiring them to keep 
 separate journals for the perusal of the house, besides their 
 usual reports to the governor as military superior.^ The gov- 
 ernor's instructions to officers it attempted to bring under its 
 own examination as well, that it might make sure of his com- 
 pliance with its recommendations, but here it gained little success. 
 The power of the purse was difficult to apply for such a purpose ; 
 for it was obviously unjust to stop the pay of officers and men 
 after they had performed service, merely for the reason that the 
 governor's instructions to them were contrary to the desire of 
 the house, and it was difficult to compel the governor to divulge 
 his correspondence with officers. In case the house suspected 
 irregularities in the conduct of officers it might (as it did in the 
 case of Woodsides in 1727, and others) stop their pay for some 
 time, while it conducted its own investigation. Such a procedure 
 must have weakened discipline, since officers and men would see 
 that obedience to military superiors was not the most sure method 
 
 ' E. g., September 20, 1723. 
 '^ Court Records, XL 479. 
 "Act 1722-3, c. 12, § 11.
 
 IN PROVINCIAL MASSACHUSETTS. I23, 
 
 of advancing their interest ; and the entrance of poHtics into the 
 militia had its natural result in the insubordination common and 
 evident in the later intercolonial wars. The same would be the 
 result of such experiences as that of Major Moodey in 1722, who 
 was apparently persecuted by the house because of the personal 
 jealousies of the members.^ 
 
 In 1722 a keen dispute^ arose over the house sending a com- 
 mittee to see the militia of the eastern counties paraded. It could 
 only be done by the governor's order, which in this case was 
 apparently given without full understanding of the purpose of 
 the house (viz., to investigate the causes of the desertions then 
 so prevalent, — probably a cover for the attempt to discover the 
 reason why the soldiers were dissatisfied with their officers). 
 Such irregular investigations also must have weakened the ordin- 
 ary methods of discipline and the responsibility of military su- 
 periors. 
 
 The stores of war would be expected to be subject to the 
 control of the military head of the province ; and yet the house 
 more and more participated in this function. As it was an "affair 
 of money," since the house had to buy the stores, it proceeded to 
 dispose of them, either through committees or by resolves directly 
 commanding its officers, the treasurer, or the war commissioners, 
 to send the stores in such and such quantities to such and such 
 places. 
 
 A question long argued between the governor and house 
 was the building of fortifications, but it was rather the expedi- 
 ency of particular fortifications that they were arguing than the 
 right to control. By charter, the governor was given the power 
 to erect .fortifications. But the costliness of such public works 
 meant that they were impossible without the willing co-operation 
 of the appropriating power, and the result was the absolute con- 
 trol of this branch of military policy by the house. It was the 
 assembly, which, on the advice of the governor, determined where 
 and Vv'hen forts should be built and contributions made to assist 
 towns in their own defence ; also in some degree, how the money 
 granted should be spent. Thus we find the general court devoting 
 much time and attention to the reconstruction and repeated re- 
 pair of the Castle in Boston harbor, building forts from time 
 
 'Court Records, XI. 397, ff. 
 ^Hutchinson, II. 253, 258, 259.
 
 124 CONSTITUTIONAL CONFLICT 
 
 to time on the expanding frontier, refusing the insistent demand 
 of Dudley under instruction from the home government that Pe- 
 maquid Fort he rebuilt and maintained, but later under Belcher 
 repairing and maintaining it, when the growth of population in 
 that direction had made it expedient in the eyes of the court. 
 
 The climax of the encroachment by the house in military 
 affairs was reached under Shute in the early twenties. On account 
 of his inefficiency as compared with Dudley the house was led for 
 the sake of the defence of the province to take a more active part, 
 and it then made use of the forms of interference above described. 
 Shute went home in disgust, January i, 1723, and laid his case 
 before the king on August 22. A considerable portion of his 
 memorial was devoted to other matters, as the invasion of the 
 king's forest rights, the speakership and adjournment controver- 
 sies ; but his five complaints against military encroachments by the 
 house are worth glancing at here for the light they throw upon the 
 situation as it was when he left it. They were as follows : 
 
 1. Voting a committee June 13, 1722, to take account of 
 stores at the Castle, without the permission of the governor. 
 
 2. Ordering the treasurer to pay no more subsistence 
 money to the Winter Harbor garrison, but to send the stores which 
 were there to Boston. Later, Shute remarks, the house ordered 
 the place re-enforced on petition of Marblehead that it was nec- 
 essary for defence, showing that his judgment had been correct. 
 The house, he says, did not like the commander. 
 
 3. Voting that Major Moodey be suspended, and refusing 
 his pay, requiring him to attend the court and ansv/er complaints 
 (to the court) of allowing drunkenness and refusing aid to 
 inhabitants, an accusation which Shute asserts (on the word of 
 the officers) to be frivolous, made because Cooke and his party 
 hated Moodey. He adds that the refusal of pay by Uie house is 
 of no force, being non-concurred by the council. 
 
 4. Mustering the militia before a committee of their own, 
 November 17, 1722, to inquire about the causes of desertion. In 
 violation of his order that the report be made to him as Captain- 
 general, it was made to the house. 
 
 5. Disposing of the forces, e. g. a resolve November 20, 
 1722, continuing in service only 40 of the 108 men in Hampshire 
 County, though "His Excellency" was to be "desired to express 
 his orders accordingly."
 
 IN PROVINCIAL MASSACHUSETTS. I25 
 
 By this memorial the whole business was brought to light 
 before the English colonial authorities. The house sent an agency 
 of its own (council non-concurring), and, ignoring the charter 
 power, made its defence on the broad ground that Shute was not 
 conducting the defence according to its will, that he had kept the 
 house in a long vacation during the war, which he then conducted 
 as he liked, the house finding afterward that the expedition they 
 planned and provided for had not been undertaken. 
 
 Shute returned to the attack with a second memorial, March 
 5, 1724, complaining of the house for prescribing the rules which 
 it was for the council to give, paying no forces without seeing 
 by the muster rolls that their orders were complied with, extend- 
 ing their encroachments to the care of the Castle, assuming in 
 January, 1723, to draw off the militia from the west, for which 
 they had been reprimanded by the lieutenant-governor. 
 
 So nuiiierous were the complaints against Massachusetts at 
 this time, so great seemed the danger to their charter (it was 
 at this time that the Explanatory Charter was granted, settling 
 the speakership and adjournment controversies), so uniform were 
 the disapproving views of the conduct of Massachusetts which 
 were held by the privy council, that upon this matter the agents 
 deemed it wise to bend to the storm, since it here involved no prac- 
 tical loss of power, but only a reduction of the extra-legal preten- 
 sions of the house. The agents replied that the house "had never 
 pretended to subject the militia of the Province to their orders, 
 knowing that power to be in the Commander in Chief;" muster 
 rolls are brought to set forth that the officers and soldiers have done 
 their duty according to the laws passed and approved in England, 
 not to "discover whether the orders [of the house] are complied 
 with." This was about as ingenuous as the plea of the house to 
 the lieutenant-governor that it only meant to "draw off pay and 
 subsistence ;" but it was sufficient. The privy council supported 
 Shute, declaring that he had "acted with great zeal and fidelity," 
 and charged the agents to stop the encroachments of the house 
 on the employment of troops. But no measures were taken to 
 stop that encroachment, and in the ways and for the reasons 
 above described the house continued to use its control of the 
 purse to secure practically complete control of the sword as well. 
 This system, which we have seen develop in the early part of 
 the provincial period, Chalmers found still in operation in the
 
 126 CONSTITUTIONAL CONFLICT 
 
 last intercolonial war, which was, as he says, "conducted by 
 Committees of Assembly."^ 
 
 The conduct of foreign affairs is commonly regarded as pre- 
 eminently an executive function, from the necessity which exists 
 in connection with it of concentrated responsibility and dispatch. 
 It is the last place in which to look for encroachment by the repre- 
 sentative body, except in the way of an indirect influence. Yet 
 we find the Massachusetts house claiming its share even in this 
 department, and in some degree exercising direct control, certainly 
 to a degree at times which divided the governor's responsibility, 
 if it did not entirely relieve him. The colony was concerned with 
 two sorts of problems, intercolonial affairs and relations with the 
 French and Indians, whether hostile or submissive. 
 
 The former was not an affair of much consequence in the 
 history of the relations between executive and legislature. It 
 was the understood thing on all hands that the court (the gov- 
 ernor, council, and house concurring) was the proper organ of 
 the province for representing it in dealings with other colonies 
 or provinces. The governor w'as the convenient intermediary 
 for carrying on correspondence with other governors, but final 
 action of the province in intercolonial relations required the formal 
 sanction of the general court (tacitly given to preliminary nego- 
 tiations), expressed in an act or resolve. 
 
 Boundary settlements, the most copious source of interco- 
 lonial disputes, were conducted by commissioners named and 
 instructed by the general court. The correspondence connected 
 therewith was carried on by the whole court, which framed and 
 adopted plans of accommodation, sending letters in the name of 
 the province, passed as resolves. This practice was common 
 among the provinces. - 
 
 Minor disputes also, such as concerned intercolonial impost 
 or tonnage duties.^ were the subject of action by the whole court. 
 
 Arrangements for defence as a matter for intercolonial 
 co-operation lay on the border line between these matters of cor- 
 porate colonial action, requiring the expression of the will of 
 the province by its legislature, and the military affairs which the 
 governor claimed to control Thus the correspondence was usu- 
 
 ' Chalmers, Revolt, II. 300, 301. 
 ^ Greene, Provincial Governor, 192. 
 'E. g. Resolve 1701-2, c. 31.
 
 IN PROVINCIAL MASSACHUSETTS. 12/ 
 
 ally carried on by the governor acting in close communication 
 with the two houses. He acted really as the spokesman of the 
 house and council, and sometimes the letters themselves were 
 written by the general court. For example, in 1694-5 Lieuten- 
 ant-governor Stoughton carried on a long correspondence with 
 Connecticut, requesting the co-operation of that colony in the 
 defence of Deerfield and the Connecticut River region, in which 
 correspondence one letter^ was "by command of the Lt.-Gov., 
 Council and Assembly ;" and in 1696 the general court voted^ 
 that an application be made to Connecticut and Rhode Island 
 for help in the war, the house naming one of the commis- 
 sioners for carrying on the negotiation, and expecting the gov- 
 ernor and council to name the other. Also in refusing the 
 quota of Massachusetts for the defence of New York, recom- 
 mended by the home government and requested by Fletcher, 
 Stoughton was glad to fortify himself behind the resolves of the 
 court," which declared that, "we humbly ofifer" that the assistance 
 cannot conveniently be rendered. The obvious reason for this 
 participation of the house in the latter case was the fact that the 
 New York proposition involved the spending of money, which the 
 house could refuse. In the former case the participation of the 
 general court in the application for aid gave the additional force 
 that the request was backed by a colony's opinion as well as a royal 
 governor's requisition, and hence would be more agreeable and 
 have greater likelihood of success. 
 
 The conduct of Indian affairs was a more delicate affair 
 between governor and house, involved so closely as it was with 
 the conduct of military affairs. In the colonial period this had 
 been a function of the governor and assistants, acting in close 
 communication with the deputies ; that is, the business had 
 been entirely in colonial hands. But the provincial governor 
 represented an entirely different principle. It was still very 
 desirable that the conduct of Indian affairs be in the executive, 
 where prompt action could be taken and strict responsibility se- 
 cured, but with a changed basis for the governorship that would 
 mean that its control had passed from the popular to the prerog- 
 ative body. Was it to be an Indian policy according to Massa- 
 
 ' Resolve 1694-5. c. 62. 
 = Resolve 1696-7, c. 76. 
 'Resolves 1695-6, cc. 29, 38.
 
 128 CONSTITUTIONAL CONFLICT 
 
 chusetts notions, or one framed on imperial lines, with ideals 
 perhaps entirely different? 
 
 The governor had certain points in his favor. It was the 
 practice among the other provinces that treaties should be made by 
 the governor, from the analogy with the chief of the executive 
 in the home government, from his general power to act in mat- 
 ters not otherwise provided for by the charter and instructions, 
 and from his instruction to maintain a good correspondence with 
 the Indians.^ The necessity of correspondence with other prov- 
 mces also, in which the governor alone was the diplomatic organ, 
 favored the claim of the governor of Massachusetts to this func- 
 tion. This unification, this imperializing of the Indian problem, 
 was naturally urged in consequence of the manifest advantage 
 enjoyed by the governor of Canada in the long conflict between 
 New France and New England, through his ability to speak for 
 all New France in negotiations, whether in offering conciliatory 
 propositions or in making threats, while the resources of the 
 English colonies were at the command of so many colonies, 
 having perhaps divergent interests. Some recognition of this 
 principle was found in the practice of appointing one governor 
 for two or more provinces (e. g., Dudley for Massachusetts and 
 New Hampshire, Bellomont for New York, New Jersey, Mas- 
 sachusetts, and New Hampshire). In this way the unified action 
 of the two or more colonies was secured in a measure by identity 
 of executives. How much better if those executives could speak 
 for their provinces without fear of disavowal by their assemblies. 
 Also in dealing with the Indians the greater impressiveness and 
 influence of a command or offer coming from the Great Father 
 in England speaking through his ambassador, the governor, was 
 obvious, as compared with the conclusions arrived at by an assem- 
 bly of deputies, some of whom were personally and perhaps famil- 
 iarly known to the Indian ambassadors. 
 
 In the early practice of the province, Indian negotiations 
 were carried on by the governor and council, holding frequent 
 communications with the house. The governor, acting under 
 advice of the council, wrote letters to agents among the Indians 
 or in the frontier towns, received from them reports of their 
 dealings, sometimes himself visited the frontiers and by previous 
 appointment conferred with the chiefs, making treaties of more or 
 
 ' Greene, Provincial Governor, 108.
 
 IN PROVINCIAL MASSACHUSETTS. 1 29 
 
 less formality. The letters which he received he usually sent down 
 after perusal by the council, for the house to read, sometimes on 
 his own initiative, often at the request of the house. Likewise 
 the personal negotiations he usually reported to them in his 
 speeches to the assembly. The advice of the house was fre- 
 quently forthcoming, was always received in good part, and was 
 often followed, because of its expression of the will of the 
 body whose purse could make war or end it. But the action of 
 the house was only occasional and spasmodic. Joint committees 
 of house and council might concert measures and they would 
 have weight with the governor ; representatives of the two houses 
 frequently at his own request accompanied him on the negotia- 
 tions, to give added dignity to the occasion ; but he it was and 
 not they who made the decisions, except in the last resort, where 
 for the decision of war and peace the power of the purse could 
 be made effective. It was too heavy a tool to use in most mat- 
 ters of diplomacy. 
 
 Phips and Stoughton were practically at one with house and 
 council in this, as in most other matters. There was therefore no 
 conflict during their administrations. Dudley was very skilful in 
 his dealings with the Indians, and except on one important occasion 
 (the Borland case, 1706) his devotion to the service of the province 
 in a military and diplomatic way was above suspicion. There was 
 for this reason little attempt to limit his discretion, which was gen- 
 erally recognized as wise and efficient. His manner of dealing was 
 exemplified in 1710, when, on February 3, he communicated to 
 the council certain letters about dealing with the Indians through 
 a Norridgewock prisoner. By advice of the council it was 
 decided that the Indian be sent, and instructions were drawn 
 up, "and the said letters and instructions sent down to the Rep- 
 resentatives for their perusal, which were returned with their 
 approbation by a message." Dudley would keep the house in- 
 formed what he was doing with the Indians, but it was for their 
 perusal that he sent the papers ; their validity was not dependent 
 on the approbation of the house, for the next day a change was 
 made in the instructions, and no mention is made of its being 
 communicated to the representatives. 
 
 In Shute's administration the house took a higher stand, as- 
 suming an aggrieved tone in regard to Indian negotiations which 
 
 *9
 
 130 CONSTITUTIONAL CONFLICT 
 
 were not carried on according to their plans. We even find a 
 declaration of war with the Indians the occasion of action by the 
 house. On August 8, 1722/ Shute announced in his speech that 
 by advice of the council he had declared war against the Eastern 
 Indians as rebels and traitors. On August 10 the house sent an 
 address to Shute declaring that they thought the governor and 
 council had sufficient reason to declare the Indians rebels, and 
 agreeing to the prosecution of a vigorous war. 
 
 In 1721-2 a strong effort was made to engage the Iroquois 
 in offensive alliance against the Eastern Indians. On September 
 9, 1 72 1, the council sent a message desiring to "know if the house 
 design to join in the care of sending the present to the Five 
 Nations or whether they will leave it to the Board." On Novem- 
 ber 13 the representatives replied. Referring to the present of 
 £500, which was recommended at the last session, it says : "altho 
 the House was not then advised with in any respect concerning 
 the disposal of the aforesaid present, as they justly expected to 
 have been, nor gave any order therefor, yet they think it requisite 
 that they be now informed" who were the commissioners, how 
 they were instructed, what they accomplished. A message was 
 sent down with the papers, giving an account of the transaction. 
 
 Later, in 1722, the house made an advance. In response to 
 the proposition of a joint committee,- on August 19, that a present 
 of £500 be sent to the Indians by commissioners, and that his Ex- 
 cellency be desired to write to the governor of New York to pro- 
 mote the affair, the house non-concurred, but proposed^ on August 
 16 a present of £1000, the treaty to be in this province, commis- 
 sioners to "be appointed by this court," and his Excellency to 
 be desired to be present. That is, the house tried to assume 
 the leading part. The council unanimously non-concurred, but it 
 practically was the program of the house that was carried out in 
 November. The place of the conference was fixed in Boston, 
 not "at Deerfield or elsewhere in Hampshire as His Excellency 
 shall think proper." On November 22 the house expressed* its 
 desire that what was to be proposed to the delegates of the Indians 
 at their dismissal be prepared by the whole court. The governor's 
 
 ' Court Records, XL 380. 
 "Ibid, 383. 
 ' Ibid, 393. 
 * Ibid, 414.
 
 IN PROVINCIAL MASSACHUSETTS. I3I 
 
 speech was sent down to the house, which repHed that "they be- 
 ing concerned in the speech now proposed to be delivered to the 
 delegates of the Six Nations, cannot consent to the same as it is 
 now drafted unless where the word 'V is it be added in the name 
 of the General Court and that the House be present when it is 
 delivered." The house had its way. 
 
 The same direct control was maintained by the house during 
 Dummer's administration, 1723- 1728. Their position was recog- 
 nized in a vote of the council on June 25, 1723,^ (with which, of 
 course, the house concurred), that his Honor "be desired to have 
 the assembly sitting when any overtures of a pacification with the 
 Eastern Indians come under consideration." 
 
 For negotiations with Indians, hostile or friendly, commis- 
 sioners were appointed by the whole court and their instructions 
 were passed concurrently.^ This was insisted on in form even when 
 the action was really taken by the lieutenant-governor and council. 
 For example, in June, 1725, both houses accepted the report^ of 
 a joint committee that his Honor "by the advice of this court ap- 
 point" two commissioners. The house sent word that it was ready 
 to make the appointment in conjunction with the board. Dummer 
 sent word to the house, however, "that agreeable to the advice of 
 the court he had appointed Col. Tailer and Col. Stoddard to go 
 upon the message Eastward, that he had communicated the same 
 to the Board and it is acceptable to them, and that he now 
 communicates it to the House, not doubting but it will be 
 acceptable to them also." On the question, "Whether the advice 
 of the Court had been had in appointing and sending down two 
 gentlemen to the Eastward which His Honor has nominated for 
 that service/' the house voted in the negative, and it was then 
 voted concurrently "that His Honor the Lieutenant-Governor 
 be desired to appoint" the same two men, by which procedure 
 the house gained a barren precedent and nothing more. 
 
 In late August and early September of 1723 a body of del- 
 egates from the Six Nations came to Boston. By the general 
 court, "Heads for the Conferences" were drawn up and accepted, 
 the Lieutenant-governor was "desired to speak to them in the 
 name of the Court" and that "Mr. Speaker and the Committee [of 
 
 ' Court Records, XL 569. 
 
 ' Court Records, XII. 20, 32, 180, 330. August, 1723, June, Dec, 1724. 
 
 ^'Ibid, 421.
 
 152 CONSTITUTIONAL CONFLICT 
 
 the two houses jointly] be of advice to His Honor more immedi- 
 ately upon any emergency." On six different days conferences 
 were held between the delegates and the Lieutenant-governor, 
 the whole court being present. Answers to proposals of the dele- 
 gates were digested by a joint committee and accepted by the 
 whole court, and the minutes of the conferences were signed by 
 the speaker for the house, by the secretary for the council, and by 
 the lieutenant-governor.^ 
 
 A dispute arose on the conclusion of this conference as to 
 the proper seal to be affixed.- The lieutenant-governor's private 
 seal having been placed on a belt of wampum presented to the 
 delegates, the house resolved that it be defaced and that the seal 
 of the province be affixed. The council non-concurred, and de- 
 sired the house to v/ithdraw the resolution, the governor being 
 keeper of the seal. But the house declared that "the affixing a 
 private seal contrary to the agreement of a committee was a high 
 affront and indignity to them."' They later justified themselves on 
 the ground that less authority in the eyes of the French and In- 
 dians would attach to a treaty bearing the private seal of the lieu- 
 tenant-governor than to one with the seal of the province, and 
 said that it was for this reason, and not out of disrespect to the 
 lieutenant-governor that they had entered this protest.^ 
 
 At the end of 1725 there was a conference of Eastern Indian 
 delegates at Boston for concluding a general pacification. On 
 November 11 Dummer sent word to the house that the Indian 
 delegates were present and that if the house or any of them should 
 incline to be present it would be acceptable.* Upon the house ask- 
 ing whether this was "to be of advice or spectators only," Dum- 
 mer replied that the making of war or peace with the Indians be- 
 longed to the lieutenant-governor with the advice of the council, 
 by the 77th instruction, but that he would be ready on occasion to 
 receive the advice of the house of representatives. The next day 
 the house declared its "earnest desire" to proceed in the same 
 method as in the treaty with the Six Nations in 1723. Dummer 
 found "a great difference" between the two cases, the treaty in 
 1723 being with his Majesty's subjects, friends of this govern- 
 
 ^ Court Records, XII. 29-54, passim. 
 'Hutchinson. II. 269. 270. 
 =■ Court Records, XII. 50. 
 •Court Records, XIII. 11.
 
 IN PROVINCIAL MASSACHUSETTS. I35 
 
 ment and always at peace with us, the design of the treaty being 
 to obtain assistance, (as it were, an inter-colonial affair) ; "whereas 
 the Eastern Indians are His Majesty's enemies and in a state of 
 rebellion and now sueing for peace. In the mean time I am very 
 desirous that both Houses should be present at the conference." 
 On the I2th of November a conference was held "between His 
 Honour the Lieutenant-Governor and the Indian delegates in the 
 Council Chamber, the two houses being present."^ On November 
 15 Dummer informed the house that he had commissioned several 
 gentlement to treat with the Indians, including the speaker and 
 two other members of the house, and though the house asserted its 
 earnest desire that "the whole Court, who are the grand Council 
 of the Province may be of advice to His Honour" as is usual and 
 not "inconsistent with His Honour's undoubted power to make 
 peace or war," yet the lieutenant-governor would only say that he 
 should "always be ready to receive" the advice of the house. Re- 
 garding the method of treating by commissioners as "more agree- 
 able to the method of former treaties than to have the whole Court 
 present . . .as well as upon many other accounts more proper 
 and convenient" he held no more conferences in the presence of 
 the whole court, but conducted the negotiation through commis- 
 sioners, who were, however, instructed by the concurrent action 
 of the two houses. The treaty, when negotiated, was agreed to by 
 the two houses with some alteration by mutual accommodation, 
 and on December 15 "in presence of the whole Court the pacifica- 
 tion was completed and signed."- At the exchange of ratifications 
 in the following July the lieutenant-governor was accompanied to 
 the eastward by a quorum of the council, and at his suggestion by 
 ten of the representatives, appointed by them for the purpose. 
 
 The regulation of Indian affairs in time of peace was assumed 
 entirely by the general court. They were regarded as subjects 
 of the king, in an extraordinary condition it is true, but under the 
 legislative power of the province, like any other class of inhabit- 
 ants. But there was also a special reason for their affairs being 
 attended to by the general court rather than by the governor and 
 council. The system of truck-houses at frontier posts, where the 
 trade with the Indians (now the chief concern of the white in his 
 relation with the redskin) was carried on by public officers, elected 
 
 'Court Records, XIII. 16. 
 ^Ibicl, 81.
 
 154 CONSTITUTIONAL CONFLICT 
 
 by the court, was supported from funds appropriated by the gen- 
 eral court, and as being "an affair of money" was pecuHarly sub- 
 ject to the influence of the house. 
 
 Thus the house is found playing a part in the fields of mil- 
 itary and diplomatic policy, far beyond what was contemplated in 
 the charter, but subject to very substantial limitations. It wages 
 war, advising and sometimes dictating the precise course to be 
 followed by the executive. It is enabled to gain this control over 
 the governor by the fact that it possesses the sinews of war, which 
 it may grant or withhold. The more deUcate process of diplo- 
 macy is not so immediately subject to the application of this heavy 
 tool, and here the governor enjoys a considerable degree of inde- 
 pendent discretion. But his independence is largely a matter of 
 immediate convenience to the house, which can not of itself con- 
 veniently perform executive functions. His seemingly independ- 
 ent action in always conditioned by the necessity of the tacit con- 
 sent of the house ; for if he neglects this he will be brought sooner 
 or later to recognize that the body of government that holds the 
 purse-string holds the essentials of sovereignty. 
 
 t
 
 APPENDIX. 
 
 I. Educational Institutions Attended by the Author. 
 
 Waterville (Maine) High School, 1890-1894. 
 Coburn Classical Institute, 1894-1895. 
 Colby College, 1895-1899. 
 Columbia University, 1900-1903. 
 
 11. Degrees and Appointments. 
 
 A. B., Colby College, 1899. 
 
 A. M., Columbia University, 1901. 
 
 Instructor, Coburn Classical Institute, 1899-1900. 
 
 University Fellow in American History, Columbia Uni- 
 versity, 1902-1903. 
 
 Instructor in American History and Political Science, Ohio 
 
 State University, 1903-1905. 
 Assistant Professor of American History and Political 
 
 Science, Ohio State University, 1905. 
 
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