BY CHARLES M. ANDREWS - American Antiquarian Society · THE ROYAL DISALLOWANCE. BY CHARLES M....

342 American Antiquarian Society. [Oct.,

THE ROYAL DISALLOWANCE.BY CHARLES M. ANDREWS

The royal disallowance of colonial laws, when con-sidered in all its phases, becomes a subject of far toowide a scope to be dealt with in the brief space at mydisposal. I propose, therefore, to limit my discussionto one phase only, that which concerned the authori-ties at home. The influence of the disallowance inthe colonies themselves is an intricate and difficultquestion that can be answered satisfactorily onlyafter a thorough study has been made of the historyof each individual colony. In what I have to say,I shall treat briefly of the early history of the dis-allowance, of the procedure accompanying its exer-cise in England, and of the rules that the Britishauthorities laid down for their own guidance. Noadequate attempt has yet been made to define theserules or to study in any systematic way the policybased upon them. One reason for this neglect is,undoubtedly, the belief that British policy was anegligible factor in colonial history and may beignored by the historian. As I consider this belief tobe erroneous, I deem it only a matter of commonhonesty to find out what this policy was, how far itwas applied in dealing with colonial legislation, andto what extent it was justified from the point of viewof England's constitutional past and the demands ofher imperial and commercial systems. The evidencedoes not lie on the surface, but must be searched forin parliamentary acts, governor's instructions, androyal disallowances.

The royal disallowance has been commonly inter-preted as if it were an act of royal legislation, and the

1914.] The Royal Disallowance. 343

Privy Council itself defined it as "the negative whichthe crown has reserved to itself upon acts of legislationin the American colonies. " But it was not an act oflegislation in the same sense that a royal veto of aparliamentary bill was an act of legislation. Thelatter was the exercise by the king of his right as aconstituent member of the British parliament. Inexercising this right the king acted alone, making nouse of the Privy Council, for the Council had no placeamong the law-makers of England. The royal dis-allowance' was an executive rather than a legislativeact, performed not by the king but by the Councilas his executive agent. It was an exercise of theroyal prerogative, an expression of the king's supremeauthority in the enacting of laws by inferior law-mak-ing bodies, whose right to make laws at all rested onthe king's will. The legislatures in the colonies werenot parliaments, that is, from the legal point of viewthey were not in any sense comparable with the su-preme law-making body in England. It is true thatthey frequently made this claim and constantly exer-cised powers that lay beyond the bounds of theirlegal right, but properly their powers were only thoseof a provincial assembly or, in the case of the corporatecolonies, of a provincial court with the right to legis-late for the good government of the company or fellow-ship. Except where the king had bound himself byhis charters, he had the right at all times to preventthese assemblies from "usurping authorities thatwere inconsistent with the peace and good govern-ment of the province."

The royal disallowance was, therefore, not a vetobut an act of regulation and control, in the same sensethat a royal letter and instruction was an act of regu-lation. In fact, disallowance and instruction weresynonymous, for both expressed in different forms theroyal will. The Privy Council, which was the king'smouthpiece in the matter, frequently issued a newinstruction instead of a disallowance; while in all the


governors' instructions clauses were inserted thatwere dormant disallowances, in that they requiredthe governors to refuse their assent to all measures ofa certain class that might be passed by the provinciallegislature. Thus the royal disallowance was butone of the means employed by the king, through thePrivy Council, to confine the colonial legislatureswithin the constitutional bounds of their powers.The royal right was never defined and never denied,even by the colonies themselves, for the colonies werethe king's colonies, such charters as they had camefrom him, their officials were his appointees, and all.orders and instructions ran in his name. They werenever "parcel of the realm," but were possessionsof the crown of Great Britain.

The right of disallowance was exercised from earliesttimes". Laws .passed by the first assemblies in Ameri-ca, those of Virginia in 1619 and of Bermuda in 1620,were recognized as subject to the approval of theirrespective companies in England, and the laws ofBermuda were actually sent over for confirmation.The Massachusetts Bay Company in 1628-1629instructed its Salem plantation to send over all lawsand orders for examination by the company at home.In 1629, five years after the Virginia colony had beentaken over by the crown. Governor Harvey in hispetition for a charter took for granted the king's rightto approve or disapprove of the laws passed in thecolony, and in the royal reply he was instructed to seethat all laws and orders were transmitted and such aswere allowed were to be but temporary and "change-able at his Majesty's pleasure." In 1631 the bur-gesses of Virginia despatched the first collection ofacts of a royal province ever sent to England. By1638 the practice had become well established. Iknow of no law actually disallowed at this early period,but one was suspended in 1638 and ordered "to lieby" for further consideration. After 1660 the rightwas afi&rmed, and in 1663 the rule was laid down for


Barbadoes that acts should be in force but one yearunless confirmed; The rule was extended to twoyears in 1664 for Jamaica. One clause of a Barbadoesact was disallowed in that year, the first certain in-stance of a disallowance that I can discover. As faras the continental colonies are concerned, the firstrecorded disallowance is that of all the laws of Bacon'sassembly in 1676, hardly a disallowance properly so-called as the assembly was deemed irregular.

The routine of transmission had got fairly wellfixed before the end of the seventeenth century.Maryland, Connecticut, and Rhode Island were notrequired by their charters to transmit their laws,though all did so to a greater or less extent. The Car-olinas and the Jerseys likewise sent over ho laws, untilafter they had become royal provinces. Massachu-setts was in the same class until 1684, but after 1691regularly transmitted her laws, while Pennsylvania,though a proprietary colony, was required to do sofrom the beginning. Before the end of the colonial pe-riod was reached, every colony had had one or more lawsdisallowed; during the eighty-three years of hersecond charter, Massachusetts had forty-seven publiclaws and twelve private laws disallowed; while withother colonies the number was much greater. Themachinery of transmission was very far from perfect,even among the royal colonies. Many laws werenever sent over; others were never acted upon or wereheld so long that months and even years elapsed be-fore a decision was reached.

During the early period the English governmentwas uncertain how to proceed. Before 1670 lawswere acted upon by the Privy Council with the adviceof its committee. In 1670 the special plantationcouncil of that year was ordered to examine the lawsof the colonies and if any were "found inconvenientor contrary to the laws" of England or to the "honourand justice" of the government they were to be im-mediately annulled. But the special councils ap-


parently took no action in the matter, for no reportsissued by them relating to colonial acts have beenfound, and in 1674 the Shaftesbury council was stilldebating "the best way for his Majesty to confirmthe laws made by the plantations." In 1675 colonialbusiness was again taken into the hands of the PrivyCouncil and entrusted to its committee, the Lords ofTrade, and then the procedure as finally adoptedwas introduced. Laws were sent from the coloniesto both the Lords of Trade and the secretary of state,and by the former reported on to the Council, withor without the advice of the crown lawyers. Thefirst reports recommending disallowance of acts regu-larly passed were in 1678, when certain acts of Jamaica,and others of Virginia, passed in February, 1677, tomeet the situation raised by Bacon's Rebellion, weredeclared null and void.

When fully developed the course of a law was some-what as follows. The Privy Council, to which after1730 all laws were sent directly, handed over the lawsto its committee. This committee was quite compe-tent to act alone, but generally referred the laws tothe Board of Trade for report. In making up itsreport the board called upon a great variety of coun-sellors for advice: first, its own special solicitor, ap-pointed in 1718, or the regular law officers of thecrown, who might and occasionally did reverse theopinion of the solicitor; then in special cases, otherdepartments of government, the bishop of London,agents of the colony, ex-governors, or others familiarwith colonial affairs. Generally the board acceptedthe opinion of those consulted and the Council com-mittee accepted the report of the board. But thiswas not always the case. Each might reject the ad-vice of its referee and modify or reverse the verdict.But the Privy Council, almost without exception,approved the report of its committee and embodiedthat report in an order in Council. This order wasalways supposedly sent to the governor of the colony.


The procedure was neither perfunctory nor mechan-ical. In the passage of a law from referee to boardand board to committee there was ample opportunitygiven to those concerned to check or accelerate itsadvance. Protests, petitions, and caveats might beentered against it, sometimes verbal and sometimes inwriting, by agents or solicitors of the colony or ofneighboring colonies, by merchants, by the bishop ofLondon, and even by the governor who had signedthe bill. Caveats were always recorded on the booksof the board. Occasionally the law would be returnedto the colony with instructions to the governor toobtain its modification or repeal, or it might be helduntil the colony met the objection that had beenraised against it. Some lively tilts took place in thePlantation Office between those who favored a lawand those who opposed it. In some instances thedifficulty of reaching a decision was so great that theboard refused to take the responsibility, leaving thematter entirely in the hands of the committee of theCouncil. Sometimes the board, not wishing to recom-mend disallowance, drafted an amendment or evena whole bill, and sent it over to be substituted forthe measure passed. Should the colony refuse topass the substituted clause or bill, the original measurewas disallowed. Sometimes an act would be recom-mended for approval with the proviso that henceforthgovernors be forbidden to sign such acts, and some-times in recommending a disallowance the opinionwas expressed that governors ought not to consent tosuch acts in the future. Frequently the act would beordered "to lie by probationary" or "to be post-poned," either until its effect could be better under-stood, until someone had been consulted, or untilsome complaint had been registered against it, afterwhich it would be sent to the legal adviser. At leastone act was read and ordered to be confirmed, thenread again and ordered to lie by. Once or twice theboard on its own initiative waited to hear from the


governor of the colony and on a number of occasionsit promised the bishop of London or some interestedindividual to let him know when the law was to beconsidered. There is one instance where an actalready confirmed was, on complaint of the merchants,afterwards disallowed, and one where the board in-structed the governor of a colony to obtain an amend-ment to an act that the Privy Council had alreadyagreed to.

Of course, all these attempts to be fair caused in-evitable delays. The board itself was often verydilatory; the legal adviser was slow in making hisreports and sometimes failed to report altogether;and the time taken in communicating with agents orwith the colony was at best exasperatingly long.For the royal colonies, a period of three years betweenthe passage of a law and the issue of a disallowancewas not uncommon. There are instances of five yearselapsing, and in the case of a New Jersey law regard-ing lawsuits passed in 1714, the act was read June27, 1720, reported to be disallowed January 10, 1722and disallowed ten days later. The same act, passedagain in 1728, was twice sent to the legal adviserand not finally disallowed until 1731. A Massachu-setts act of 1695 for the settlement and support ofministers was "complained of by the parsons and sentto Mr. Attorney General" in 1727. One freakishcase, and not the only one of its kind, was that of aNew Hampshire law of 1718, which was not disalloweduntil 1769, when an additional act was passed in thecolony and sent to England. When Fane retired in1746, he left without report a large number of laws,which had been sent to him three or four years before,and his successor, Matthew Lamb, to whom theselaws were immediately despatched, left his own quotaof unexamined laws at the time of his death in 1768.There was no regularly commissioned legal adviserfrom 1768 to 1770, though laws were sometimes sentto a "Mr. West," a solicitor whose identity has so far


eluded me. Jackson, who was appointed in 1770,was on the whole prompt in his replies. In 1766 sogreat a number of laws had accumulated that thePrivy Council peremptorily ordered the board to ex-amine them and make report, which the board did sozealously as to overwhelm the Council committeewith a mass of laws and recommendations that heldup regular business for many days. It was inevitablethat under such circumstances comments on coloniallegislation should be hasty and inconsistent. Allthings considered, the wonder is that the criticismswere as good as we find them to be.

The policy which governed the board and its ad-visers had four leading aspects. First, to defend thelaw and custom of the British constitution; secondly,to guard the interest and welfare of British subjects;thirdly, to protect the colonies or any of their inhab-itants from ill-advised legislation; and lastly, to pre-vent the passing of laws that were extraordinary,oppressive, improper, or technically defective.

I. The first group of disallowances is the largest,though not necessarily the one that ranked as mostimportant in the eyes of the English authorities.Departures from the law and custom of England werenot infrequently permitted, if good reason could beadduced therefor, but laws that affected the welfareand prosperity of the subjects of Great Britain, andso of the state itself, were rarely allowed to go intoforce if the Board of T'rade and the Council committeecould ̂ prevent it. The welfare of the colonists them-selves was held in high consideration, provided it wasnot furthered at the expense of British subjects, andlaws that were deemed in any sense injurious, eitherbecause of their content or because of their form,were always disallowed.

As I have said, the first group is by far the largest.It includes, first, all laws that affected or trespassedon the royal prerogative, a power wide and uncertainand nowhere defined; secondly, all laws that were


contrary to the governors' instructions or in excessof powers granted by the charters, each of which wasbut an expression of the royal will; and thirdly, alllaws that were contrary to or in derogation of anyact of parliament specifically relating to the colonies,that went counter to English legal or administrativeusage, or that were in opposition to the organizationand practice of the Anglican church. Let us takethese up in turn.

1. No royal colony had a legal right to concernitself with such questions as the duration of theassembly, the qualification of electors or elected, orthe number of those making up the legislative body.The assemblies could not legally decide questionsof controverted elections or define their own powers.They could not legally grant representation to newtownships or declare any part of the populationdebarred for any reason whatever from sitting in theassembly. These were regal powers, exercisable onlythrough the colonial governor, the king's deputy inthe colony, though at times, other reasons had weight,such as the fear of the English authorities lest thepopular branch of the colonial legislature should beincreased and so destroy the balance between theassembly and the council. No royal colony had theright to appoint executive officers, either by law orordinance. It could not restrict the functions of anypatent office, the appointment to which always layin the hands of the crown. It could not compelholders of such offices to reside in the colony. Itcould not render these offices less lucrative by at-tempts to regulate fees and perquisites to the disad-vantage of the incumbents, or in any way to takeaway the rights and privileges belonging to suchoffices. The assembly of a royal colony could notappoint judges or chancellors who, though not neces-sarily patent officers, were nominees of the king only.It could not erect courts or decide where actions shouldbe tried, nor could it interfere with the established


legal jurisdiction by grants of powers to new officials,such as sheriffs and justices of the peace. It couldnot alter the tenure of judges by declaring that, theyheld office during good behavior and not at the king'spleasure, and it could not in any way restrict the king'sfreedom of appointment by defining qualificationsor narrowing the range of selection. It could not takefrom the crown the right of hearing appeals from col-onial courts.

In the same class of unconstitutional acts, butmaking a greater stir in colonial history, were all legis-lative measures looking to the control of the publicpurse. The Board of Trade recommended the dis-allowance of many acts whereby the colonial assem-blies sought to direct appropriations and the appoint-ment of colonial treasurers. " It declared such actscontrary to the instructions of the governors, whoalone could issue warrants for money. The boardobjected very strongly to the South Carolina Actregulating the Indian trade (1731) because it placedthe power of making presents to the Indians in thehands of the assembly instead of the governor, whoby his instructions had authority "to issue all publicmoney by his warrant with the advice of council."So vigorous was the quarrel over the question in NewYork, Massachusetts, and elsewhere, that it is notclear why the many acts passed by the assembly ofNorth Carolina, between 1738 and 1773, practicallytaking the collecting and expenditure of public taxesout of the hands of the governor, were allowed tostand. But I cannot find that they were ever dis-allowed. The governor signed them, and one of themat least was returned by the legal adviser of the boardendorsed "no objection." On the other hand, Jack-son in 1778 recommended the disallowance of a To-bago act on the ground that it required the governorto sign the warrants and so placed a restriction onthe royal freedom of action. Voting the speaker asalary, appropriating any crown revenue, or dimin-


ishing in any way the revenue of the crown were alldeemed repugnant to the rpyal prerogative. Eventhe establishment of fairs and markets was a royalprivilege and could not be usurped. The Board ofTrade watched over all revenue bills, and if it founda tack or rider in the form of an appropriation clause,it recommended the disallowance of the whole. Otheracts in derogation of the royal authority were thosealtering a city charter granted by the king, as in thecase of Norfolk, Virginia; conferring a monopoly,which could be created only by royal patent; author-izing naturalized subjects to hold property, affecting,as the disallowance said, "the king's rights derivedfrom the laws and constitution of the kingdom"; orrepealing an act that had once received the royalconfirmation.

2. In the same general class are all disallowancesof acts passed contrary to the governor's instructions.That such were constantly passed we know, and thatthe governors were thereby often placed in very em-barrassing positions our colonial records show. Gov-ernor Johnston of North Carolina complained to theboard of a great many acts that he had been compelledto sign, and there is one instance where in 1734 thegovernor of Barbadoes signed a bill and then apparent-ly sent home depositions and other testimony for thepurpose of having it disallowed. The colonial assem-blies were masters of the art of persuading theirgovernors that instructions did not mean what theyseemed to mean, and the Board of Trade, three thou-sand miles away, was powerless to meet the difficultsituation. Once when Dobbs of North Carolina, ahighly conscientious man, attempted to justify hisaction, the board deemed the course adopted an ag-gravation of the offence, and declared that if thegovernor "could be dissolved by the opinions ofothers from the obligation of obedience," then "theinterests of the crown and the mother-country mustdepend solely for security on the uncertain wills, inter-.


ests, and instructions of any person whose adviceand opinion the governor might think proper to ask."Despite brave words frequently uttered, the boardwas not able even by the threat of a severe reprimandor the loss of his position to keep the colonial governorto his statutory obedience.

Whenever a colonial assembly passed an act thatexceeded its powers or was not properly cognizableby it as a law-making body, that act was disallowedas an infringement of the prerogative. Such hap-pened when one of the proprietary or corporate col-onies legislated contrary to its charter, as when RhodeIsland set up a court of vice-admiralty, Connecticutdealt with heretics, and Massachusetts attemptedto regulate the taking of fish within its harbors andthe coves of its townships. Such happened in aroyal colony when New Jersey inserted in a papermoney act a clause concerning counterfeiting thatwas construed in England as a subject lying outsidethe province of the legislature. Matters not cog-nizable by a legislature were usually such as camewithin the jurisdiction of the courts and should havebeen dealt with in the ordinary course of law. Mass-achusetts passed acts fining certain persons who hadaided the enemy and enabling a married woman toprosecute an action. -New Hampshire passed actsrelating to private property and enabling privatepersons to revive a suit at law. New York passedacts partitioning lands held in common; and NewJersey in 1771 passed an act regarding debtors, onwhich occasion the board laid down the general rulethat "the frequent and occasional interposition ofthe legislature in cases of individuals for the purposeof stopping or diverting usual courses of legal actionis unjust." In the same class are all legislative actsof divorce, the first of which was passed in Jamaica in1739, and others in Nova Scotia (1763), Pennsylvania(1769, 1773), New Jersey (1773), and New Hampshire(1774). In 1773, the governors were directed by a


general instruction to allow no divorces by act ofassembly.

3. Many acts were disallowed because contraryto acts of parliament or because they conflicted withthe prevailing English practice in like cases. Lawswere disallowed that were contrary to the terms ofthe First Fruits Act of Henry VIII, the NavigationActs, the Toleration Act, the Proclamation of 1704 orthe Coinage Act of 1707, the Mutiny Actj the BarrackAct, the Patent Act, and the acts to prevent paperbills of credit, naturalizing foreign Protestants inAmerica, and dealing with insolvency cases. Lawswere disallowed that were construed as contrary toEnglish usages touching outlawry, affirmation, secur-ity of the creditor, the ballot, the service of writs,the various conventions under the common law allow-ing a wife or divorcée to sell property, the legal juris-diction of local justices or city officials, and the meth-ods of obtaining divorce. The rule of the board wasextended to things ecclesiastical as well as temporal,and laws that introduced variations from Anglicanpractices at home, such as the vestry acts of Marylandand North Carolina and the East Chester parishact of New York, were disallowed on the recommenda-tions of the bishop of London, who had a standingorder with the board that he be informed wheneveracts of an ecclesiastical character were under con-sideration. Laws that seemed intolerant and con-trary to the liberty of conscience enjoyed in England,such as the Massachusetts acts taxing Quakers andAnti-psedobaptists, the Connecticut act againstheretics, and the Maryland act against RomanCatholics, suffered a like fate.

II. Probably the most important of all the reasonsfor disallowance was that an act affected the tradeand shipping of the kingdom or the privileges andprerogatives of British subjects. In one sense suchacts fall within the class of those that trenched uponthe king's authority, for the royal prerogative had


"an ancient and special force in the government oítrade," as seen in the grants of trading charters andof monopolies of trading privileges. Hence any lawthat placed the inhabitants, trade, and shipping ofthe colonies on a more advantageous footing than thoseof Great Britain was certain to be disallowed. Suchwere the South Carolina Port Act and the New Hamp-shire act for preventing frauds in the customs. Trad-ing companies, industrial and mercantile corporations,individual merchants, and others were alert to protestagainst all acts of this character, and their influencewas very great, though not always decisive even atthis time. The commissioners of customs and thetreasury likewise registered their refusal to agree tomany acts of this nature. All measures contrary tothe Navigation Acts and laws liable to promotesmuggling or to hamper trade, whether by sea or land,as in the case of the Massachusetts act for establishingsea-ports, the Maryland act altering the size of to-bacco casks, the New York act regarding peddlers,and the Virginia act dealing with the Indian trade,were regularly disallowed. In the case of the NewYork acts prohibiting trade with the French in Can-ada, the board very unwillingly recommended theirdisallowance on other grourids. The board regularlydisallowed all Jamaica acts levying duties on negroeslanded for refreshment only, and the Jamaicans asregularly ignored such disallowances. The govern-ors were specially instructed to veto any acts layinga duty on English or European goods imported inEnglish vessels, and the board recommended the dis-allowance of all acts that, came before it levyingimport dues on wines, liquors, English merchandise,and shipping. Such acts were passed at one time oranother by Massachusetts (Shipping and ExciseActs), New York, Pennsylvania (import duties onliquors and hops), Virginia (Tonnage Act), Bermuda(Deficiency Act), and Antigua. The board alsorecommended the disallowance of certain export acts,


such as those of New Jersey imposing duties on tim-ber and copper ore and that of Georgia on hides.The Privy Council having issued an order in 1740prohibiting the export of sugar from the British sugarislands to any foreign island, all acts contrary to thisorder were always disallowed.

As trade was extremely sensitive to all legislationtouching money and credit, acts passed in the coloniesthat affected in any way the creditor class, to whichas a rule the British merchants belonged, were viewedwith the utmost disfavor. The governors had verypositive directions upon this point and themselvesvetoed a number of acts, which had they reached Eng-land would certainly have been disallowed. In thestatute of 1707, the king reserved full right to refusethe royal assent to any measure passed in the coloniesfor settling and ascertaining the current rates of coinswithin the plantations. Acts of this character thatcame under the ban were those of Nevis regulating theuse of French "black dogs" (copper sous), of Jamaicaraising the value of pieces of eight and regulating thevalue of Spanish milled money, and the Virginia actaffecting rates of exchange. Though the land bankscheme of Massachusetts was brought to naught byact of parliament, that of Barbadoes was suppressedby order in Council, as "imposing an intolerable hard-ship on creditors, damnifying his Majesty's revenue,and obstructing trade," while the Massachusettsexcise law was disallowed because lessening the valueof the goods imported and so affecting the trade ofGreat Britain. Almost all the debtor and bank-ruptcy laws of the colonies—Massachusetts, Virginia,North Carolina, and others—were considered injuri-ous to the British merchants, and when in 1771 Jack-son reported adversely on the Montserrat law attach-ing the goods, money, and chattels of persons absent,he said that laws of this description were almostuniversal in America and "were contrary to the prin-ciples requisite to the very foundations of commerce."


Laws reducing the rate of interest were commonlydisallowed, and the Bahamas law preventing vexatiouslawsuits, and those of Pennsylvania establishing courtsof judicature and of Virginia erecting a court ofhustings at Williamsburg were annulled as prejudicialto the interests of the merchants. In this class fallthe many acts providing for the issue of bills of credit,some of which were confirmed and some disallowed,but this subject is too intricate and important forconsideration here. In the same class also fall theacts, comparatively few in number, that were deemedlikely to encourage manufacturing in the colonies,such as the Pennsylvania act preventing the sale ofbadly tanned leather for the making of shoes. Allacts of this nature were construed as contrary towhat England considered her best interest in the col-onies.

III. The Board of Trade was always anxious to doall that it could to prevent the passing of laws thatmight be injurious to the colonies, and to niodify itsrules so far as to confirm measures that might strength-en or otherwise benefit them. The Barbadoes landtitle act designed to quiet possession was thoughtmore likely to create disturbances and to lead to con-troversies at law, and the same was said of the NewJersey county court act. The various New Yorkacts passed under Bellomont in favor of Leislerianclaimants were disallowed for the good of the province,and a Massachusetts act of 1743 was deemed unjustbecause "it had a retrospect to contracts made uponthe faith of an act of 1741." Acts imposing duties onslaves were thought to place a burden on the poorerplanters, and the Jamaica law regarding slaves andfree negroes was disallowed because working a hard-ship on free negroes and their descendants. TheAntigua law keeping out Roman Catholics andthe Jamaica law taxing Jews were considered injurious

' to their respective colonies, while all the acts of West^Indian legislatures imposing a double tax on absentees


were interpreted as an unfair discrimination and ahardship to planters in England. Similarly, acts forchecking the importation of slaves and keeping outcriminals and poor and impotent people were disal-lowed, not only because in part contrary to the actof parliament for the transportation of felons, butalso because likely to decrease the supply of labor andto hinder the populating of the territory. For thesame reason all laws authorizing excessive grants ofland to individuals were discouraged as hinderingsettlement. The New York, act regulating the magis-trates of Kingston was disallowed as tending to theruin of that town; the military law of Pennsylvania,passed in 1756, was similarly treated as likely tocramp the public service; while the North Carolinaact to encourage the importation of British half-pence was thought to open the way to great fraudsand abuses by the introduction of base and counter-feit coin to the detriment of the colony.

Not only did the British authorities keep in mindthe dangers likely to accrue to individual colonies bythe passing of ill-advised legislation, but they extend-ed their interest to other and neighboring coloniesand to the colonies as a whole. The North Carolinaacts encouraging settlement and taxing Indian tradersfrom Virginia were disallowed because they werethought to hamper trade and injure Virginia; theGeorgia shipping act was held up until the agents ofneighboring colonies could be consulted; the Penn-sylvania act advancing the rates at which foreign coincould pass was considered injurious to Maryland be-cause drawing away her hard money; the Massachu-setts act excluding New Hampshire notes was deemeda prejudicial measure; and when Virginia wanted toimpose a tonnage duty for a lighthouse at CapeHenry, the act was disallowed as affecting Marylandtrade and shipping. Any measure that was distinctlycontrary to practices in other colonies was alwaysheld in suspicion, such as the Antigua act reducing


interest, those of Georgia and Nova Scotia for regu-lating courts, and that of Massachusetts for prevent-ing the spread of infectious diseases.

At the same time the board and its advisers werealways ready to stretch a point if an act was a realadvantage, or what they thought was a real advantageto the colony, even though the law might be objec-tionable on other grounds. Laws that concerned onlythe private affairs or "domestic economy" of theprovince, if proper, were allowed to stand, eventhough they were unlike anything known in England.Such, for example, were the Pennsylvania poor lawand the Virginia act dealing with the method of tryingcriminals and the practice of pleading in court. ThePennsylvania act barring entailed estates was allowedin 1751, even though the legal adviser reportedagainst it, because the people wanted it. Other actswere allowed, even though they differed more or lessfrom the law of England, either because they werefounded on local custom and usage and were not in-consistent with reason and natural justice, or becausethey were wise and proper and of importance to thehappiness and prosperity of the people. In the caseof St. Vincent in 1711, the board was not willing "topress the customary laws of settled colonies or ofEngland upon a newly settled island struggling withdifficulties, danger, and insecurity."

IV. In the last group were laws that the boardconsidered improper, illegal, extraordinary, or danger-ous, or technically open to criticism. Both Barbadoesand Maryland passed laws in an improper manner inthe absence of the governor. Virginia passed an actappropriating money for the payment of members ofa convention that had not been authorized to meetby the crown, and this was considered illegal. Num-bers of acts were declared incongruous and unreason-able, others extraordinary, irregular, vexatious, ordangerous, while still others were considered toosummary in the powers conferred, oppressive, liable


to arbitrary abuse, or inquisitorial. That many lawsdrawn up in the colonies should have been technicallyimperfect is not surprising. As early as 1631, theburgesses of Virginia begged the king to excuse "theforms of their acts," as men were wanting who werecompetent to draft them; and the same want of menversed in the technique of the law and the phraseologyof legal instruments was characteristic of the entirecolonial period. The situation improved after 1750,and almost no laws were disallowed after that date ontechnical grounds. But in the earlier years laws weresent over that the board thought likely to have theopposite effect intended, that contained words andphrases of loose and uncertain meaning, that were socarelessly penned as likely to be attended with greatinconvenience in execution, or that were defective inomitting some necessary definition, qualification, orpertinent clause. Many acts had bad titles, or titlesthat were not in accord with the text of the acts, ortitles that covered only a part of the act. Two Lee-ward Island acts, regarding the governor's house-rent,were so badly worded that, as the board said, the col-ony bound itself to pay the rent to the governorshould he cease to bé governor but continue to reside,or should he continue to be governor but reside else-where.

That the policy of the crown might not be appliedtoo rigidly and that opportunity might be given for acareful consideration of the legitimate needs of thecolonies, the Privy Council adopted the principle ofthe suspending clause, whereby provision was madethat nothing in the act should have force, power, orefficacy until the king's will had been made known.An act of this nature stood suspended until the receiptby the governor of the order from England confirmingor disallowing it, and it is worthy of note that in 1768the governor of New York wished to know what heshould do in cases where neither confirmation nor dis-allowance had been received. In general, such clause


was to be added to all laws that departed from therules already laid down. All private acts had to havenot only a suspending clause but also a clause savingthe rights of the crown. Instead of adding a suspend-ing clause, the assembly might send a draft of thebill to England or obtain the royal consent in someother way. The Board of Trade expressed itself verystrongly on this subject, and once when in 1752 Vir-ginia petitioned against the obligation, it refused tolisten to any abrogation of the rule whatever. Never-theless, it is a fact that the suspending clause was gen-erally ignored by the colonies and its insertion whenrequired was rather the exception than the rule.Massachusetts, I believe, never employed it, and therequirement that it be added to bills of credit acts,enjoined in Belcher's instructions, was omitted fromthose issued to Shirley in 1741. The colonies thor-oughly disliked the suspending clause, and in latertimes as loyal a governor as Edward Long of Jamaicawas emphatic in his denunciation of it. At times somanifest was the injustice of such a clause that theboard, despite its rules, did recommend the confirma-tion of acts containing no suspending clause, whereone should have been inserted.

I have now considered in summary fashion but asfully as my space will allow, the disallowances ofcolonial laws that were ordered by the king actingthrough the Privy Council and the Board of Trade.The policy that underlay these disallowances was inaccord with the terms of the British constitutionof the seventeenth and eighteenth centuries and withthe views held by British statesmen and merchantsregarding the proper place of colonies in the Britishcommercial and imperial scheme. The policy workedbadly in operation, because of time and distance, andbecause the colonies in order to evade the requirementmade a practice as often as possible of passing tem-porary laws to continue in force but a year, thusthwarting the royal will. Furthermore, the time

362 Am^ican Antiquarian Society. [Oct.,

allowance, notably in the case of Pennsylvania, fre-quently led to the transmission of so many laws atonce that the .board was not able to examine themas thoroughly as it ought to have done, a situationthe more objectionable because the board was not thebest judge of colonial needs, upholding a constitution-al control that too often, even under the most favor-able circumstances, hampered colonial action anddevelopment. The position taken by the board andits advisers was constitutionally and legally correct,and their rules were not without ample justificationin their own eyes. But these rules were not favorableto colonial independence and self-government, andthey were not designed to be. As the colonists wererapidly growing in independence and in a determina-tion to govern themselves, it was inevitable that thedisallowance should be frequently violated andbrought to naught. Colonial self-government was in-compatible with the maintenance of the royal pre-rogative, yet the authorities at home, with colonialsubordination and dependence as the leading objectsof their policy, could hardly have acted otherwisethan they did. The disallowance was neither un-constitutional nor designedly oppressive, but theBritish authorities and the colonists in America didnot always see the colonial situation eye to eye in thesame light. The colonists were fashioning their ownconstitutional order, but in so doing they were per-forming acts of legislation and government that wereundoubtedly illegal and revolutionary, when con-strued not in terms of the democracy that was to be,but from the standpoint of English law and customby which they were legally bound and of the Englishcommercial system of which they were legally a part.

BY CHARLES M. ANDREWS - American Antiquarian Society · THE ROYAL DISALLOWANCE. BY CHARLES M....

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