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conform to the laws of England, and to be sent to England for the royal sanction.
New England, as a royal province under Andros, was an anomaly in American history. For nearly three years arbitrary power reigned; a ruler, unrestrained by law; land titles declared void, and estates given away, as the caprice of the tyrant dictated; taxes imposed by order of the satrap of King James II.,
and personal liberty held only by permission of the Gov
Upon the accession of William and Mary, the charter governments were revived. By the labors of Increase Mather and others, a new charter for Massachusetts Bay was granted, giving the King power to appoint a Governor, Lieutenant-Governor and Secretary, and making other important changes in the government.* The Legislature, or General Court, now consisted of a House of Representatives, chosen by the towns, and a Council of twenty-eight members, chosen by the General Court, but subject to the Governor's rejection. Plymouth colony and Maine were now annexed to Massachusetts, and given representatives in the General Court. The Governor had a veto on bills, and even three years after his approval, the King might annul the laws. The Governor was commanderin-chief of the militia, and appointed military offi
With the consent of the Council, he appointed judges and all officers connected with the courts.
Courts of Admiralty were constituted by the Crown to look after the execution of acts in reference to Brit
* Palfrey, vol. iii., p. 67. † Palfrey, vol. iii., p. 72.
ish commerce, and Probate Courts were established by the Governor in Council. Instead of a committee of the Privy Council, “ The Lords' Commissioners for Trade and Plantations” now constituted the power behind the throne, to dictate the commercial policy of England toward the colonies. The colonial Governers were now required to swear that they would use their utmost diligence to make the navigation or commercial laws effective, Parliament even struck at American manufactures, by forbidding their exportation out of the province. The power to rule commerce being secured to England, the other powers of government were held chiefly by the General Court.
By this Charter of William and Mary the qualifications of voters were changed from a basis of church membership to one of property, liberty of worship was secured to all Protestants, and in some civil causes appeals might be made to the King in Council. Such was the government of Massachusetts from the English Revolution down to the American-nearly ninety years.
The General Court consisted of a house of Representatives and twenty-eight Councilors, who sat in a separate chamber, except when officers were nominated in joint ballot. It alone had the power to levy taxes; yet the power of the crown was, in many particulars, greater than it had been under the old charter. While the Representatives were elected by the towns, the Councilors were nominated yearly by the two houses in joint session and approved by the Gov
Thus the friends of prerogative were found in the upper house. The power of the executive to dissolve the General Court before the expiration of the official year, was a royal prerogative very different from any possessed by the Governors elected under the old charter.
A conflict arose between the lower house, or the Duputies, and Joseph Dudley, the Governor appointed by Queen Anne, in which the Governor demanded, in vain, of the Legislature to settle upon his office a fixed salary. Subsequent Governors also failed to secure for themselves and other high officials appointed by the Crown, a fixed salary, but were compelled to depend for compensation upon the good will of the taxing power.
The House of Representatives came in conflict with the Governor and Council upon many questions. While the Governor had a veto upon the laws, the house refused to vote supplies unless its demands were allowed; thus the functions of the executive department were invaded and its independence crippled. While the King's officers demanded compliance with the King's wish that the province should build a fort at Pemaquid to protect the settlements in Maine, and establish salaries for the Governor, Lieutenant Governor and judges; the province refused the royal requests. The Court clung to its sole power to tax the people of the province and to control the money raised by taxation, while the mother country strove to strengthen the dependence of the colony upon the Crown.
In Parliament a bill was projected to vacate the charters of the colonies which called forth Jeremiah Drummer's Defence of the American Charters, in which their sacred character as contracts with the Crown was upheld and in which the liberties of the colonies were held to be compatible with the prosperity of the Crown. The vehement disputes over the question of a fixed salary for the Governor, occasioned threats by the royal agent of an attack upon the charter by Parliament, as well as charges of disloyalty against the colony; but the House relied upon its powers under the charter and maintained the rights and privileges of Englishmen.
On the 8th of November, 1760, Wm. Pitt sent stringent orders to revenue officers in America to break up the contraband trade carried on with the French and Spaniards with whom England was at
In Boston, writs of assistance, which authorized custom-house officers, “in the day time, to enter and go into any house, shop, cellar, warehouse or room or any other place, and in case of resistance to break open doors, chests, trunks and other packages, to sieze and from thence bring any kind of goods or merchandise prohibited and uncustomed, and to secure the same in his Majesty's warehouse."* James Ottis denied the power to grant any such writ, even by Parliament itself. The courts declared writs of assistance legal and the conflict between the government and the popular party in Boston went on. The House declared that if it should give up the right to originate all taxes, the province would then be under the rule of an arbitrary despotism.t
* Palfrey, vol. iv., p. 308. † Palfrey, vol. iv., p. 320.
The denial of the power of Parliament to tax the colonies followed as a corollary to the right of the House of Representatives alone to tax the people of Massachusetts, and the dispute concerning duties, taxes and stamps upon paper, forms the prelude to the drama of the Revolution.
The organized force which carries a State through a revolution is of small value in the study of constitutional systems. It is difficult to describe the governments of the colonies during the Revolution except by detail. The Republican spirit of the times weakened the power of the executive and strengthened the legislative departments. It was the House that came from the people, that resisted the royal Governor. The governments were made to conform to the popular will. The people formed their own charters, local self-government prevailed.
The resolutions of the Continental Congress were the most authoritative expressions of the people's voice. Congress had been frequently requested by the colonies in revolt, to give its advice and direction in relation to the establishment of civil government where the royal governments had been driven out. On the 3d
4th of November, 1775, Congress advised the
colonial governments * "to call a full and free representation of the people in order to form such a form of government as in their judgment would best promote the happiness of the people, and most effectually secure peace and good order in their provinces during the continuance of the dispute with Great Britain."
* Jameson's Constitutional Convention , 8 127.