66. How to Avoid a Governor's Veto (1764)

BY LATE GOVERNOR THOMAS POWNALL

This suggestion is based on the practice of many assemblies. — Bibliography as in No. 53 above.

THE

HE settling and determining this point is of the most essential import to the liberties on one hand, and the subordination on the other, of the government of the colonies to the government of the mother country. In the examination of this point, it will come under consideration, first, Whether the full and whole of legislature can be any way, in any special case, suspended; and next, whether the crown, by its instructions, can suspend the effect of this legislature, which by its commission or charters it has given or declared; if not, the crown, whether the parliament of Great Britain can do it, and how; whether it should be by act of Parliament, or whether by addressing the crown upon a declarative vote, that it would be pleased to provide by its instructions, for the carrying the effect of such vote into execution, as was done in the case of the paper-money currency.

In the course of examining these matters, will arise to consideration the following very material point. As a principal tie of the subordination of the legislatures of the colonies on the government of the mother country, they are bound by their constitutions and charters, to send all their acts of legislature to England, to be confirmed or abrogated by the crown; but if any of the legislatures should be found to do almost every act of legislature, by votes or orders, even to the repealing the effects of acts, suspending establishments of pay, paying services, doing chancery and other judicatory business: if matters of this sort, done by these votes and orders, never reduced into the form of an act, have their effect without ever being sent home as acts of legislature, or submitted to the allowance or disallowance of the crown: If it should be found that many, or any of the legislatures of the colonies carry the powers of legislature into execution, independent of the crown by this device,it will be a point to be determined how far, in such cases, the subordination of the legislatures of the colonies to the government of the mother country is maintained or suspended; or if, from emergencies arising in these governments, this device is to be admitted, the point, how far such is to be admitted, ought to be determined; and the validity of these votes and orders, these Senatus Consulta so far declared. For a point

of such great importance in the subordination of the colony legislatures, and of so questionable a cast in the valid exercise of this legislative power, ought no longer to remain in question.

Thomas Pownall, The Administration of the Colonies (London, 1765), 47-49.

67. Disallowance of a Colonial Bill (1770)

BY THE LORDS COMMISSIONERS FOR TRADE AND PLANTATIONS The ultimate power of disallowance was one way of enforcing instructions, and the chief means of keeping the colonies within bounds. - Bibliography: George Chalmers, Opinions of Eminent Lawyers (a collection of recommendations for disallowance).

THE

HE Lords of the Committee of your Majestys most honble Privy Council for Plantation Affairs having by their Order of the 10th of Nov: last directed us to report to them Our opinion upon a Bill passed in May 1769 by the Council and House of Representatives of your Majesty's Council of New York for emitting £120,000 in paper notes of Credit upon loan, to which Bill your Majesty's late Governor had refused his assent without having first received your Majesty's directions for that purpose.

We did on the 20 of Dec' make our report thereupon submitting it to their Lordships to give such advice to your Majesty on this subject as they should think fit, and in the mean time, and until your Majesty's pleasure could be known the Lieut' Gov' was acquainted with the several steps which had been taken on this occasion & with the difficulties which arose in point of law upon those Clauses of the Bill by which the paper notes to be cancelled were made a legal Tender in the Treasury and loan office of that Colony.

It is our duty however to observe to your Majesty that notwithstanding their intimation given to the Lieut Gov' a new Bill in no material points differing from that now before your Majesty has been proposed in the Assembly of this Colony & having passed that house and been concured in by the Council Your Majestys said Lieut' Gov' did think fit by their advice to give his assent to it on the 5 day of January last and therefore it becomes necessary for us to lose no time in humbly laying this Act which was received at Our Office yesterday before Your Majesty, to the end that if Your Majesty shall be pleased to signify your disallowance of it, either upon the ground of the doubts in point of law

which occurred to the former Bill, or upon a consideration of so irregular a proceeding as that of entering upon a proposition of this nature & passing it into an Act pending the consideration of it before Your Majesty in Council there may be no delay in having Your Majestys Pleasure thereupon signified to the Colony, so as to reach it before that part of the Act which authorizes the emission of the Bills can take effect that is to say on the last Tuesday in June.

How far the Lieut' Gov' is justified in the conduct he has thought fit to pursue on this occasion must be submitted to your Majesty upon the reason assigned by him in his letter to one of your Majestys principal Secretaries of State & to this Board extracts of which are hereunto annexed, but it is Our further duty to observe that the Instruction of July 1766, on the ground of which he says the Council advise him to this step does expressly forbid any law of this nature to be passed without a Clause suspending its execution until your Majestys [pleasure] could be known

E. B. O'Callaghan, editor, Documents relative to the Colonial History of the State of New-York (Albany, 1857), VIII, 202–203.

68. Dispute over the Agency (1771)

BY AGENT BENJAMIN FRANKLIN

From about 1680 the colonies were in the habit of appointing some person to represent their interests in London; and such agents received salaries. Franklin was agent for several colonies at the same time. Critical History, V, 216, VI, 53, 89.

I

- Bibliography: Winsor, Narrative and

Wednesday, 16 January, 1771.

WENT this morning to wait on Lord Hillsborough. The porter at first denied his Lordship, on which I left my name and drove off. But, before the coach got out of the square, the coachman heard a call, turned, and went back to the door, when the porter came and said, "His Lordship will see you, Sir." I was shown into the levee room, where I found Governor Bernard, who, I understand, attends there constantly. Several other gentlemen were there attending, with whom I sat down a few minutes, when Secretary Pownall came out to us, and said his Lordship desired I would come in.

I was pleased with this ready admission and preference, having sometimes waited three or four hours for my turn; and, being pleased, I could

more easily put on the open, cheerful countenance, that my friends advised me to wear. His Lordship came towards me and said, "I was dressing in order to go to court; but, hearing that you were at the door, who are a man of business, I determined to see you immediately." I thanked his Lordship, and said that my business at present was not much; it was only to pay my respects to his Lordship, and to acquaint him with my appointment by the House of Representatives of Massachusetts Bay to be their agent here, in which station if I could be of any service (I was going on to say "to the public, I should be very happy; " but his Lordship, whose countenance changed at my naming that province, cut me short by saying, with something between a smile and a sneer,)

L. H. I must set you right there, Mr. Franklin, you are not agent. B. F. Why, my Lord?

L. H. You are not appointed.

B. F. I do not understand your Lordship; I have the appointment in my pocket.

L. H. You are mistaken; I have later and better advices. I have a letter from Governor Hutchinson; he would not give his assent to the bill.

B. F. There was no bill, my Lord; it was a vote of the House.

L. H. There was a bill presented to the governor for the purpose of appointing you and another, one Dr. Lee, I think he is called, to which the governor refused his assent.

B. F. I cannot understand this, my Lord; I think there must be some mistake in it. Is your Lordship quite sure that you have such a letter?

L. H. I will convince you of it directly. (Rings the bell.) Mr. Pownall will come in and satisfy you.

B. F. It is not necessary, that I should now detain your Lordship from dressing. You are going to court. I will wait on your Lordship another time.

L. H. No, stay; he will come immediately. (To the servant.) Tell Mr. Pownall I want him.

(Mr. Pownall comes in.)

L. H. Have not you at hand Governor Hutchinson's letter, mentioning his refusing his assent to the bill for appointing Dr. Franklin agent?

Sec. P. My Lord?

L. H. Is there not such a letter?

Sec. P. No, my Lord; there is a letter relating to some bill for the payment of a salary to Mr. De Berdt, and I think to some other agent, to which the governor had refused his assent.

L. H. And is there nothing in the letter to the purpose I mention? Sec. P. No, my Lord.

B. F. I thought it could not well be, my Lord; as my letters are by the last ships, and they mention no such thing. Here is the authentic copy of the vote of the House appointing me, in which there is no mention of any act intended. Will your Lordship please to look at it? (With seeming unwillingness he takes it, but does not look into it.) L. H. An information of this kind is not properly brought to me as Secretary of State. The Board of Trade is the proper place.

B. F. I will leave the paper then with Mr. Pownall to be

B. F.

L. H. (Hastily.) To what end would you leave it with him? To be entered on the minutes of that Board, as usual. L. H. (Angrily.) It shall not be entered there. No such paper shall be entered there, while I have any thing to do with the business of that Board. The House of Representatives has no right to appoint an agent. We shall take no notice of any agents, but such as are appointed by acts of Assembly, to which the governor gives his assent. We have had confusion enough already. Here is one agent appointed by the Council, another by the House of Representatives. Which of these is agent for the province? Who are we to hear in provincial affairs? An agent appointed by act of Assembly we can understand. No other will be attended to for the future, I can assure you.

B. F. I cannot conceive, my Lord, why the consent of the governor should be thought necessary to the appointment of an agent for the people. It seems to me that

L. H. (With a mixed look of anger and contempt.) I shall not enter into a dispute with you, Sir, upon this subject.

B. F. I beg your Lordship's pardon; I do not presume to dispute with your Lordship; I would only say, that it seems to me, that every body of men, who cannot appear in person, where business relating to them may be transacted, should have a right to appear by an agent. The concurrence of the governor does not seem to me necessary. It is the business of the people, that is to be done; he is not one of them; he is himself an agent.

L. H. (Hastily.) Whose agent is he?